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United States Court of Appeals 

for the 

District of Columbia Circuit 



TRANSCRIPT OF 
RECORD 






APPENblX TO APPELLANTS BRIEF 



UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA Cnf&fifff? 6f A 


District of Columbia Circuit 


FEB 16 1953? 


*GBN-W. SNYDER, SECRETAI^OFTHE TREASURY, 
ROBERT RAMSPECK, CHAIRMAN UNITED STATES. 
CIVIL SERVICE COMMISSION ET AL., 

^ ^ Appellees. 


APPEAL FROM ORDER AND JUDGMENT IN THE UNITED STATES 
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 


Harold R. Love, pro se , 
3912-39th Avenue South, 
Minneapolis 6, Minnesota, 
For Appellant. 


Charles M. Irelan and 
Vincent C. Burke, Jr., 

United States Attorney and As¬ 
sistant United States Attorney, 
United States District Court Build¬ 
ing, Washington 1, D. C., 

For Appellees. 







o 


INDEX 


^ Complaints_ 2 

First_2 

Second_6 

- Third___ 11 

Motion for Summary Judgment_15 

Supporting Affidavit_ 17 

Affidavit of Failure to Respond_26 

* Affidavit of Failure to Comply with Rule 9 (b) Local 

Rules_ 27 

Objections to Motion to Dismiss_1_27 

Objections under Rule 9 (b) Local Rules_29 

k Affidavit of Service_30 

* Objections to Service of Motion to Dismiss_30 

Affidavit of Service_ 31 

Addition to Objections_ 32 

Plaintiff’s Affidavit_ 33 

Memorandum of Court_41 

* Affidavit Supporting Motion for Summary Judgment_ 43 

„ Objections to Rulings in Memorandum_ 45 

Order of the Court_ 49 

Notice of Appeal_ 49 

Designation of Record_50 

1 Statement of Points of Error_51 

„ Denial of Motion for Reconsideration_53 

Civil Docket Entries_54 


; 

* 









(This printed Record conforms in full with the pages of 
the typewritten record made) 

RECORD ON APPEAL 

i 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA. 


Civil Action No. 1887-52. 

Harold R. Love, 3912-39th Avenue South, 
Minneapolis 6, Minnesota, Plaintiff, 

vs. 

Frank C. Pace, Jr., Secretary of the Army, John W. 
Snyder, Secretary of the Treasury, Robert Ramspeck, 
Chairman United States Civil Service Commission 
and Lindsay Warren, Comptroller General, All of 
Washington, D. C., Defendants. 


Filed April 29, 1952. 


COMPLAINTS IN THE NATURE OF MANDAMUS OR 
MANDATORY INJUNCTIONS IN MATTER OF 
BENEFITS DUE WAR VETERAN. 

Jurisdiction. 

• 1. The jurisdiction of this Court is based upon Sec¬ 
tions 11-306 and 11-315 of the District of Columbia Code, 
1940 Edition and Amendments of the Constitution, Articles 
V, VI and XTV. 




2 


2. The plaintiff is a citizen of the United States and 
a resident of the State of Minnesota. The defendants are 
the Secretaries of the Departments of the Army and Treas¬ 
ury, the Chairman of the Civil Service Commission and 
the Comptroller General of the United States. 

First Complaint 

Against the Secretary of the Army, the Chairman 
of the Civil Service Commission and the 
Comptroller General. 

3. From and after July 3, 1908, through September 
19, 1947, plaintiff has been employed in various capacities, 
as a civilian employee of the Post Office, Agriculture, 
Treasury, War and Navy Departments, at various loca¬ 
tions, received various promotions, never a demotion, has 
been an altogether loyal American citizen, with an effi¬ 
ciency rating of good or better, with competitive, classified 
civil service Status, honorable discharge from War service 
as a commissioned officer of the United States Army, has 
completed satisfactorily, various probationary or trial 
periods in such services, has a 10 point disability prefer¬ 
ence as a War Veteran, for appointment, reinstatement or 
reemployment in the civil service of the United States and 
from January 13, 1942, through September 19, 1947, per¬ 
formed his employment in the War Department 

2 (Department of the Army) to which assigned, in a 
creditable and efficient manner. 

4. At or about midnight December 27, 1944, while 
upon the rolls of the War Department as Civilian auditor 
CAF-9 grade, plaintiff received a telegram signed by one 
Colonel C. D. Johnson Army Officer on the active list of 
the Army, ordering plaintiff “suspended indefinitely with¬ 
out pay,” effective immediately from his civilian position, 
giving no ground, reason or explanation therefor, at De¬ 
troit, Michigan. 

5. Such telegram referred to in paragraph 4 above, 
usurped power such army officer did not have, contrary to 
Sections 648 and 652 of Title V, U. S. C. A., and 576 of Title 
X, ARMY, U. S. C. A., deprived plaintiff of all the rights 


3 


and benefits provided by Sections 648, 652, 851-869 of Title 
V, U. S. C. A., and of his position, office and salary from 
December 27, 1944, to April 2, 1945, on which latter date 
plaintiff was restored to position and pay, as civilian au¬ 
ditor of the War Department at CAF-11 grade and salary. 

6. In the forenoon of December 28, 1944, upon orders 
given by Colonel C. D. Johnson while on the active list 
of the army as an officer, by force of arms, caused plain¬ 
tiff’s person and personal effects and papers to be seized 
and searched, and his personal effects taken away from 
plaintiff, over his protest, by duress and armed force caused 
plaintiff to be removed from his place of employment and 
barred therefrom, his official credentials seized and taken 
from plaintiff, by a member of the military police of the 
armed forces, prevented plaintiff from occupying his posi¬ 
tion or office and performing his civilian employment 
established in the War Department and deprived him of 
his pay, salary, compensation and emoluments attached 
to his position, until April 2, 1945, while plaintiff stood 
ready, willing and able to perform his duties and employ¬ 
ment at all times involved. 

7. Plaintiff believes and therefore alleges, that on 
the facts shown herein, in the premises set forth, defend¬ 
ants have acted without due process and deprived plaintiff 

of his rights, benefits, position and salary attached 
3 thereto, contrary to law, and the Amendments to the 
Constitution, Articles V, VI and XTV. 

8. Defendants, their predecessors and subordinates 
all, refused to grant to plaintiff a hearing or right to appear 
before any administrative officer or officers of their 
agencies, though duly demanded, and refused to permit any 
appeal to the Civil Service Commission on the matter in¬ 
volved, or give any further consideration to the matter. 

9. Plaintiff duly filed claims with each of the de¬ 
fendants named in this complaint, at Detroit, Michigan, 
and Washington, D. C., and under Sections 71 and 71a of 
Title 31, U. S. C. A., based on the facts and premises shown 
herein and others, with demand for recognition of the 



4 


rights and benefits due him by statutes and regulations, 
and each defendant at all times has refused to grant such 
rights or benefits, refuses to consider any of such matters, 
or act upon the claims. 

10. Plaintiff believes and therefore alleges that the 
failures and refusals of defendants to fully inform plaintiff 
of all reasons, specifically and in detail, ground, or ex¬ 
planation for the “indefinite suspension” from December 
27, 1944, to April 2, 1945, the refusal to comply with the 
provisions of Section 863 of Title V, U. S. C. A., and viola¬ 
tion of Section 648 of Title V, U. S. C. A., shown, and the 
applicable regulations; constitute such failures and re¬ 
fusals on the part of defendants to fulfill ministerial duty 
and wrongful performance of their duties by others not 
having such power, to justify this Court in issuing a Writ 
of Mandamus, requiring defendants to furnish specifically 
and in detail, any and all reasons and notices to grant him 
opportunity thereafter to appear before the proper civilian 
administrative officer of the executive department, present 
affidavits in defense, have decision on any answer he may 
have thereto, and appeal to the Civil Service Commission 
from any adverse decision made. 

4 11. Plaintiff believes and therefore alleges that 

he has exhausted all administrative remedies avail¬ 
able to him. 

12. Unless this Court will issue the Writ of Mandamus, 
the plaintiff has no adequate remedy at law. 

Wherefore, the premises considered, plaintiff respect¬ 
fully prays: 

First: That due process of this Court issue command¬ 
ing and directing the Secretary of the Army, the Chairman 
of the Civil Service Commission and the Comptroller Gen¬ 
eral of the United States to appear and answer the ex¬ 
igencies of this complaint. 

Secondly: That such defendants be required to certify 
all of the evidence in the files of the Department of the 
Army, the United States Civil Service Commission and the 


5 


Comptroller General and action taken regarding the same 
to this Honorable Court, for review by this Honorable Court. 

Thirdly: That upon a hearing of this cause this Court 
shall require such defendants to fully inform plaintiff of 
any charges against him and to comply with the require¬ 
ments of Sections 648, 652 and 863 of Title V, U. S. C. A., 
and the Civil Service Regulations, Sections 8.102 (a) (1) 
and 22.2 (c), and grant hearing before the proper ad¬ 
ministrative officer or officers. 

Fourthly: That in the event this Honorable Court finds 
that a Writ of Mandamus should not issue in this case, the 
herein prayed for relief may be granted to the plaintiff by 
this Honorable Court by Mandatory Injunction under the 
authority of the Administrative Procedures’ Act of 1946, 
Section 863 of Title V, U. S. C. A., and the Amendments 
to the Constitution, Articles V, VI and XIV. 

Fifthly: That the Honorable Court interpret and de¬ 
clare the law to be, that Colonel C. D. Johnson, while an 
officer of the Army on the active list thereof, was not an 
executive official or employee of the War Department, 
within the meaning of the term “administrative officer” of 
that department, as used in Section 863 of Title V, 
5 U. S. C. A., and that his actions set forth were vio-, 
lative of plaintiff’s rights under Sections 648, 652 
and 863 of Title V, U. S. C. A., and the Constitution while 
in effect and plaintiff had an official efficiency and conduct 
rating of good or better, were in contravention of Section 
576 of Title V, ARMY, U. S. C. A., and that all acts com¬ 
plained of, accomplished by such army officer while on 
the active list of the army were void and without due 
process of law. • v 

Sixth: And for such other and further relief as the 
nature of the case may require and to this Honorable 
Court may seem just and proper. 

Harold R. Love. 




6 


Second Complaint 

Against the Secretary of the Army, the Chairman of the 
Civil Service Commission and the Comptroller 

General of the United States. 

% 

1. Realleges paragraph 3 in words and figures as if 
fully set forth here as contained in the plaintiff’s First 
Complaint. 

2. On July 28, 1947, dated retroactively and retro¬ 
spectively, after plaintiff had fully occupied his position 
and performed all employment of such position, from July 
16, 1947, through July 27, 1947, he received from Phila¬ 
delphia, Pennsylvania, a notice that he had been suspended, 
effective July 17, 1947, to July 23, 1947, inclusive of both 
dates, at Jeffersonville, Indiana, based upon a written order 
signed by one Major A. W. Newbury an Army Officer 
while on the active list of the Army, dated July 11, 1947, 
ordering that plaintiff be suspended without pay, effective 
July 16,1947, for a period of five (5) days from his civilian 
position, giving no ground, reason or explanation therefor, 
from Washington, D. C. 

. 3. Such order referred to in paragraph 2 above, usuiped 
power such army officer did not have, contrary to Sec¬ 
tion 648 of Title V, U. S. C. A. and Section 576 
6 of Title X, ARMY, U. S. C. A. and deprived plain¬ 
tiff of all the rights and benefits provided by Sec¬ 
tions 46a, 648, 652 and 851-869 of Title V, U. S. C. A. and 
the Civil Service Regulations Sections 9.102 (a) (1) and 
22.2 (c) and of earned salary, pay and emoluments of his 
position, from July 16, 1947, through July 23, 1947, estab¬ 
lished theretofore and was without due process of law 
and void. 

4. On July 24, 1947, plaintiff was restored to his 
civilian position and the effective payrolls of the Depart¬ 
ment of the Army as Cost Analyst and performed in full 
the duties of his position until September 20, 1947, acting 
as chief in charge of his office at Jeffersonville, Indiana, 
by delegation of authority during the absence of the offi¬ 
cial in charge of said office in the Department of the Army 
during such period- 


7 


5. Without the issuance of any notice or personnel ac¬ 
tion report upon from WD-50, or otherwise, plaintiff was 
refused any payment or compensation for his services per¬ 
formed and accepted by the Department of the Army,, as 
civilian Cost Analyst, from August 4, 1947, through Sep¬ 
tember 19, 1947, and his salary, pay, compensation and 
emoluments of his position confiscated and withheld by de¬ 
fendants, during such period, contrary to the provisions 
of Section 46a of Title V, U. S. C. A., without due process 
of law. 

6. Confiscation of plaintiff’s earned pay, salary and 
emoluments due from his employment as a civil employee 
of the United States was effected and consummated solely 
on the basis of an order signed by one Major A. W. New¬ 
bury, an Army Officer, while on the active list of the Army 
at Washington, D. C., dated August 4, 1947, directing civil¬ 
ian employees of the Army Audit Agency at' Philadelphia, 
Pennsylvania, to deprive plaintiff “effective close of busi¬ 
ness 5 August, 1947, for a period of thirty (30) days” of 
his pay, salary and emoluments of his position, and to 
withhold the same for such period, giving no reason, ground 
or explanation therefor, and without due process of law. 

7. Such order and direction referred to in paragraph 
6 above, usurped power such army officer did 

7 not have, contrary to Section 576 of Title X, ARMY, 
U. S. C. A., and deprived plaintiff of all the rights, 
privileges and benefits provided by Sections 46a, 648, 652 
and 851-869 of Title V, U. S. C. A., and the Civil Service 
Regulations, Sections 9.102 (a) (1) and 22.2 (c) and of 
the earned salary, pay and emoluments of his position from 
August 4,1947, through September 19,1947, and caused the 
confiscation and withholding of plaintiffs property rights 
without just compensation or due process of law. 

8. On September 19, 1947, at the close of that busi¬ 
ness day, plaintiff at Jeffersonville, Indiana, at his office 
and station, while acting as employee in charge thereof, 
received a written order signed by one Colonel H. B. Bliss 
while he was on the active list of the Army as such officer, 
by which “office space, desks, equipment, etc.” then as- 



8 


signed to plaintiff were ordered and directed withdrawn 
immediately, and plaintiff was barred and prevented from 
performing his duties in his civilian position with the 
Department of the Army, and such order has continued 
in effect thereafter, preventing performance of plaintiff’s 
duties, depriving him of position and office as civilian em¬ 
ployee of such agency. 

9. Such order and direction referred to in paragraph 
8 above, usurped power such Army Officer did not have, 
contrary to the provisions of Section 576 of Title X, ARMY, 
U. S. C. A., and deprived plaintiff of his right to position 
and office, established theretofore as a civilian employee 
of the Department of the Army, though plaintiff stood 
ready, willing and able to perform his duties at all times 
involved. 

10. Under date of September 5, 1947, in writing, de¬ 
fendants were fully and duly advised by the Civil Service 
Commission from Cincinnati, Ohio, that the orders of 
Major A. W. Newbury, dated July 11 and August 4, 1947, 
were invalid and that plaintiff should be immediately re¬ 
instated to his former position as Cost Analyst CAF-11. 

8 11. Under date of May 26, 1949 in writing. 

Defendants were duly advised by the Civil Service 
Commission from Philadelphia, Pennsylvania, that it was 
recommended the agency effect plaintiffs restoration to 
the position of Cost Analyst as of July 13, 1947. 

12. No appeal was filed within the time required by 
Civil Service Regulation Section 22.11, directed to the 
findings or recommendations referred to in paragraphs 10 
and 11 above, and the same became final, conclusive and 
mandatory of enforcement under Sections 863 and 868 of 
Title V, U. S. C. A. 

13. Defendants at all times involved have refused 
to recognize or enforce the findings and recommendations 
referred to in paragraphs 10 and 11 above, after duly made 
demand to enforce the same. 

14. Plaintiff duly filed claims with each of the de¬ 
fendants named in this complaint at Washington, D. C n 


9 


said under Sections 71 and 71a of Title 31, U. S. C. A., based 
on the facts shown herein and demanded the rights, 
privileges and benefits due him provided by statutes and 
regulations and such defendants at all times have failed 
or refused to grant or consider any of such matters, or 
act upon the claims in any respect 

15. Plaintiff believes and therefore alleges that the 
failures and refusals of the defendants to fully inform the 
plaintiff of any and all reasons specifically and in detail, 
or give ground, or explanation for the suspension set 
forth above, during the period of time from July 17, 1947, 
through July 23, 1947, inclusive of both dates, and for 
thirty (30) days’ period following August 4, 1947, refusal 
and failure to comply with the provisions of Section 863 
of Title V, ,U. S. C. A. and applicable regulations, con¬ 
fiscation and withholding of plaintiffs earned pay, salary 
and emoluments, during the period from July 16, 1947, 
through September 19, 1947, while plaintiff was employed 
and performed his duties assigned to his office and posi¬ 
tion; constitute such failures and refusals of de- 
9 fendants to fulfil ministerial duty, and wrongful 
performance of their duties by others not having 
such power, to justify this Court in issuing a Writ of 
Mandamus, requiring defendants to furnish, specifically 
and in detail, any and all grounds or reasons, related to 
such purported suspension, notice and decisions required 
by statute and regulation, and to declare that this plain¬ 
tiff is entitled to payment for his services performed, in 
the amount of earned pay, salary and emoluments attached 
to his position from July 16, 1947, remaining unpaid, to 
grant him opportunity to appear before the proper civilian 
administrative officer, in person and present his case, or 
in the alternative that plaintiff is entitled to a Mandatory 
Injunction, under and by virtue of Sections 648 and 863 
and 868 of Title V, U. S. C. A., and the Administrative 
Procedures Act of 1946, set forth in Sections 1001-1011 of 
Title V, U. S. C. A., requiring defendants to furnish spe¬ 
cifically and in detail any and all reasons, or notices to 
grant him opportunity thereafter to appear before the 
proper civilian administrative officer of the executive de- 




10 


partment, present affidavits in defense, have decision on 
any answer he may have thereto, and to appeal to the 
Civil Service Commission any adverse decision, finding 
or recommendation made. 

16. Plaintiff believes and therefore alleges that he 
has exhausted all administrative remedies available to 
him. 


17. Unless this Court will issue the Writ of Manda¬ 
mus the plaintiff has no adequate remedy at law. 

Wherefore, the premises considered, plaintiff respect¬ 
fully prays: 

First: That due process of this Court issue command¬ 
ing and directing the Secretary of the Army, the Chair¬ 
man of the Civil Service Commission and the Comptroller 
General of the United States to appear and answer the 
exigencies of this complaint. 

10 Secondly: That such defendants be required 

to certify all of the evidence in the files of the De¬ 
partment of the Army, the United States Civil Service 
Commission and the Comptroller General and action taken 
regarding the same, to this Honorable Court, for review 
by this Honorable Court. 

Thirdly: That upon a hearing of this cause this Court 
shall require such defendants to fully inform plaintiff of 
any charges against him and to comply with the require¬ 
ments of Sections 46a, 648, 652, 863 and 868 of Title V, 
U. S. C. A. and the Civil Service Regulations, Sections 9.102 
(a) (1) and 22.2 (c) and grant hearing before the proper 
administrative officer or officers. 

Fourthly: That in the event this Honorable Court 
finds that a Writ of Mandamus should not issue in this 
case, the herein prayed for relief may be granted to the 
plaintiff by this Honorable Court, by Mandatory Injunc¬ 
tion, under the authority of the Administrative Procedures’ 
Act of 1946, Sections 863 and 868 of Title V, U. S. C. A., 
and the Constitution’s Amendments, Article V, VI and 
XIV. 


Fifthly: That the Honorable Court interpret and de¬ 
clare the law to be, that Major A. W. Newbury and Col¬ 
onel H. B. Bliss, while officers of the Army on the active 
list thereof were not administrative or executive officials 
within the meaning of the term “administrative officer” 
of the War Department, as used in Section 863 of Title V, 
U. S. C. A., and that their actions complained of were 
violative of plaintiffs rights under Sections 46a, 648, 652, 
863, and 868 of Title V, U. S. C. A., were without due 
process under the Constitution while such statutes were 
in effect and the plaintiff had an official efficiency rat¬ 
ing of good or better; were further in contravention of 
Section 576 of Title X, ARMY, U. S. C. A., and that all acts f 
complained of accomplished by such army officers while 
on the active list of the Army, were void and de¬ 
ll prived the plaintiff of property rights without just 

compensation or due process of law., 

• « * 

Sixth: And for such other and further relief as the 
nature of the case may require and to this Honorable 
Court may seem just and proper. 

• Harold R. Love. 

Third Complaint. 

Against the Secretary of the Treasury and the Chairman 
of the United States Civil Service Commission. 

1. Realleges paragraph 3 in words and figures as if 
fully set forth here as contained in plaintiffs First Com¬ 
plaint. 

2.. From November 28,1920, through October 31,1943, * 
plaintiff was employed continuously as Inspector and In¬ 
ternal Revenue Agent in the Treasury Department at 
Washington, D. C. and St. Paul, Minnesota, performed all 
work to which assigned to the best of his ability and in a 
creditable manner, and received promotions and official 
efficiency ratings of good or better, was never demoted 
nor his conduct questioned. 

3. On or about May 9, 1951, plaintiff took written 
examination given by the United States Civil Service 



12 


Commission, at Minneapolis, Minnesota, for appointment 
as Internal Revenue Agent, passed the written tests given, 
was further examined on June 1, 1951, at St. Paul, Minne¬ 
sota, relative thereto, and received, dated June 7, 1951, 
final rating and statement of eligibility issued by the Board 
of United States Civil Service Examiners Bureau of In¬ 
ternal Revenue, St. Paul, Minnesota. 

4. Under date of August 31, 1951, over the signature 
of G. R. Novotny, Board of United States Civil Service Ex¬ 
aminers, Bureau of Internal Revenue, United States Treas¬ 
ury Department, St. Paul, Minnesota, plaintiff was advised 
his eligibility had been suspended, with no reason, cause 
or explanation given, debarring plaintiff for future ap¬ 
pointment. 

5. Under date of October 29, 1951, in reply to re¬ 
quest made October, 1951, for transfer of eligibility as 
Internal Revenue Agent to the Chicago, Illinois, office of 

the United States Civil Service Commission, the Re- 
12 gional Director there, Mr. J. A. Connor advised 
plaintiff he was the subject of a Loyalty Report, but 
gave no other reason or explanation. 

6. Under, date of January 10, 1952, over the signature 
of defendant Robert Ramspeck, Chairman United States 
Civil Service Commission at Washington, D. C., relative 
to the matter involved herein, plaintiff was advised “con¬ 
sidering the facts of your case, it does not appear that there 
has been any adverse action affecting you within the 
meaning of Section 14” (Veterans’ Preference Act, Section 
863 of Title V, U. S. C. A.), but asserted no reason, cause 
or explanation for debarring plaintiff from eligibility for 
civil service employment. 

7. Under date of January 14, 1952, James M. Hart, 
Director of Personnel of the Treasury Department, Wash¬ 
ington, D. C., advised over his signature, directed to plain¬ 
tiff, that the Treasury Department had no jurisdiction, but 
gave no reason, ground or explanation for denying eligibil¬ 
ity or debarring plaintiff from appointment to position as 
Internal Revenue Agent. 


13 


8. Repeatedly, plaintiff has addressed requests, the 
last under date of April 7,1952, to the above named defend¬ 
ants, special delivery mail, that he be placed on all appoint¬ 
ment lists to which he has established his qualifications 
and eligibility for reinstatement or reemployment, that he 
be certified for appointment, reinstatement or reemploy¬ 
ment, and appointed to any vacancy or position in accord 
with Sections 851-868 of Title V, U. S. C. A., that he be fur¬ 
nished any existing reason, cause, ground or explanation, 
specifically and in detail, pursuant to law and regulations, 
related to such suspension debarring plaintiff from employ¬ 
ment or appointment or any claim of “suitability,” and that 
he be afforded opportunity to be personally heard and 
present any matter related to suitability, but defendants 
refuse to advise plaintiff further in the premises. 

9. That during the times involved, there have been 
vacancies in positions of Internal Revenue Agent in the 
Treasury Department, to which plaintiff has established 
his qualifications and eligibility to perform and be certified 

thereto, and be considered for appointment but de- 
13 fendants have at all times involved refused certifi¬ 
cation, appointment, reinstatement or reemployment. 

10. Plaintiff believes and therefore alleges that the 
failures and refusal of defendants to fully inform plaintiff 
of any reason, ground or explanation, related to his “suit¬ 
ability” and refusal to certify his name for appointment, 
make appointment, reinstatement or reemploy plaintiff in 
the civil service of the Treasury Department, constitute 
such failures or refusals of defendants to fulfill their min¬ 
isterial duty, as to justify this Court in issuing a Writ of 
Mandamus, requiring the defendants to furnish specifically 
and in detail any and all reasons, grounds or explanation 
related to his suitability, give notices and decisions, re¬ 
quired by law and regulations, to grant him opportunity 
to answer thereto, with opportunity thereafter to appear 
personally before the proper administrative officer in per¬ 
son and present his case, or in the alternative that plaintiff 
is entitled to a Mandatory Injunction, under and by virtue 
of the provisions of Section 863 of Title V, U. S. C. A., and 
of the Administrative Procedures’ Act of 1946 as set forth 



14 


in Sections 1001-1011 of Title V, U. S. C. A., requiring de¬ 
fendants to furnish specifically and in detail any and all 
reasons, give notices to grant him opportunity thereafter, 
to appear personally before the proper civilian Administra¬ 
tive Officer of the United States, present affidavits in de¬ 
fense, have decision on any answer he may have thereto, 
and grant appeal to the Civil Service Commission from any- 
finding or recommendation made, if adverse to plaintiff. 

11. Plaintiff believes and therefore alleges that he 
has exhausted all administrative remedies available to 
him. 

Wherefore, the premises considered, plaintiff respect¬ 
fully prays: 

First: That the process of this Court issued com¬ 
manding and directing the defendants to appear and an¬ 
swer the exigencies of this complaint. 

Secondly: That defendants be required to certify 
all of the evidence in the files of the Treasury 
14 Department and the United States Civil Service 
Commission regarding any charges against the plain¬ 
tiff and action taken regarding the same to this Honorable 
Court for review by this Court. 

Thirdly: That upon a hearing of this cause this Court 
shall require defendants to fully inform the plaintiff of 
any and all charges, specifically and in detail, in compli¬ 
ance with the Veterans’ Preference Act of 1944, as amended 
(Section 863 of Title V, U. S. C. A.), and thereafter grant 
to plaintiff, a hearing before the Treasury Department and 
the United States Civil Service Commission. 

Fourthly: That in the event that this Honorable Court 
finds that a Writ of Mandamus should not issue in this 
case, the relief herein prayed for, may be granted to the 
plaintiff by this Honorable Court by Mandatory Injunction 
under the authority of the Administrative Procedures’ Act 
of 1946 and Section 863 of Title V, U. S. C. A. 


15 


Fifth: And for such other and further relief as the 
nature of the case may require and to this Honorable Court 
may seem just and proper. 

Harold R. Love. 

(Verification and Oath omitted.) 

15 Filed June 25, 1952. 

(Venue and Title Omitted.) 

MOTION FOR SUMMARY JUDGMENT. 

Supporting Affidavit Attached. 

1. The above named plaintiff moves the Honorable 
Court for a Summary Judgment in his favor to obtain re¬ 
lief in part under his complaints, to the extent the Court 
shall issue its decree, render judgment and to determine 
and declare the law to be (1) that Colonel C. D. Johnson, 
while an officer of the Army, on the active list thereof, 
was not an executive or administrative official or employee , 
of the War Department, within the meaning of the term 
“administrative officer” of that agency, as used in Section 
863 of Title V, U. S. C. A., (2) that his actions set forth 
in the First Complaint in the above entitled action were 
violative of plaintiff’s rights under Sections 648, 652 and 
863 of Title V, U. S. C. A., and the Constitution, while 
plaintiff had an official efficiency and conduct rating of 
good or better, (3) were in contravention of Section 576 
of Title X, ARMY, U. S. C. A., and (4) that his acts com¬ 
plained of were accomplished by such army officer while 
on the active list of the army and were therefore void and 
without due process of law, contrary to law, without au- . 
thority of law and the acts constituted usurpation of power ' 
not authorized by law and (5) that such actions of said 
army officer shall be set aside and declared of no force 
and effect. 

• 2. For a Summary Judgment in his favor to obtain 

relief in part under his complaints, to the extent the Court 
shall issue its decree, render judgment, determine, inter- 


16 


pret and declare the law to be (1) that Major A. W. New¬ 
bury and Colonel H. B. Bliss, while officers of the army on 
the active list thereof, were not administrative or executive 
officials within the meaning of the term “administrative 
officer” of the War Department, as used in Section 863 of 
Title V, U. S. C. A., (2) that their actions complained of, 
were violative of plaintiffs rights under Sections 46a, 648, 
652, 863 and 868 of Title V, U. S. C. A., (3) were without 
due process under the Constitution, while such statutes 
were in effect, and the plaintiff had an official efficiency 
rating of good or better, (4) were in contravention 
16 of Section 576 of Title X, ARMY, U. S. C. A., (5) that 
all acts complained of accomplished by such army 
officers while on the active list of the army, were void 
and deprived the plaintiff of property rights, without just 
compensation or due process of law, were contrary to law, 
without authority of law, and the said acts constituted 
usurpation of power not authorized by law, (6) that such 
actions of said army officers shall be set aside and declared 
void, of no force nor effect and (7) that it be declared and 
adjudged plaintiff is entitled to his earned emolument and 
salary at CAF-11 grade and pay, as Cost Analyst of the 
agency, for his services performed from July 16, 1947, to 
July 24, 1947, and from July 24, 1947, to September 19, 
1947, as provided and required by Section 46a of Title V, 
U. S. C. A. 

3. There is no genuine issue of a fact involved in the 
relief sought herein, and movant is entitled to a judgment 
as a matter of law. 

4. With particularity the grounds of this motion are: 

(1) The facts shown in the First and Second Com¬ 
plaints in this cause, as set forth respectively in paragraphs 
Nos. 3-11 and Nos. 1-16 of the verified statements. 

(2> The facts shown and the allegations set forth in 
the affidavit attached hereto. 

(3) The files and records of the Department of the 
Army, the United States Army, the United States Civil 
Service Commission and the General Accounting Office of 


17 


the United States, or such parts thereof as are deemed nec¬ 
essary to the consideration of this motion, by the Court, 
pursuant to Section 1009 (e) of Title V, U. S. C. A. 

Plaintiff submits he is entitled to the relief requested 
in each of the instances set forth hereinabove. 

Harold R. Love, Movant. 


17 Filed June 25, 1952. 

. Supporting Affidavit. 

(Venue Omitted.) 

Harold R. Love, being first duly sworn according, to 
law, upon his oath, deposes and says, that he makes the 
averments and alleges the facts stated hereinafter, on his 
own personal knowledge and that the same would be ad¬ 
missible in evidence and affirmatively states affiant is 
competent to testify to the matter stated herein, and such. 
affiant shows as follows: 

1. He is the person-plaintiff who brought the above 
entitled action. 

2. He was, from and after July 3, 1908, through Sep¬ 
tember 19, 1947, employed in various capacities as a civil¬ 
ian employe of the Post Office, Agriculture, Treasury, 
War and Navy Departments, at various locations, received 
various promotions, never a sustained demotion, has been 
an altogether loyal American citizen, at all times had a 
recorded efficiency rating of good or better, with com¬ 
petitive, classified permanent civil service status, honor¬ 
able discharge from war service as a commissioned officer 
of the United States Army, had completed satisfactorily 
various probationary or trial period in such services, has 
a 10 point disability preference as a war veteran, for ap¬ 
pointment, reinstatement or re-employment, in the civil 
service of the United States, and from January 13, 1942, 
through September 19,1947, performed his employment in 
the War and Army Department, to which assigned, in a 
creditable and efficient manner. 



18 


3. At, or about midnight December 27,1944, while on 
the rolls of the War Department as Civilian Auditor, at 
CAF-9 grade, affiant received a telegram signed by one 
Colonel C. D. Johnson, Army Officer, while he was on the 
active list of the United States Army, ordering affiant “sus¬ 
pended indefinitely without pay,” effective immediately, 
from affiant’s civilian position, giving no ground, reason 
or explanation therefolr, from and at Detroit, Michigan. 

4. Such telegram usurped authority or power such 
army officer did not have, contrary to Section 576, Title 
X, Army, Sections 648 and 652 of Title V, U. S. C. A., de¬ 
prived affiant of all the rights, benefits, privileges and 
immunities provided by Sections of the statutes set forth 
and Sections 851-869 of Title V, U. S. C. A., and of his 
said position, office and salary, from December 27, 1944, 

to April 2, 1950, on which latter date affiant was 
18 restored to position and pay as civilian Cost Analyst 
of the War Department at CAF-11 grade and sal¬ 
ary. 


5. In the forenoon of December 28, 1944, upon orders 
given by said Colonel C. D. Johnson, while such office: 
was on the active list of the army, by force of arms, af¬ 
fiant’s person, personal effects and personal and private 
papers were seized and searched, without warrant, prov¬ 
ocation or cause, and all taken away from him over his 
protest, and objections, by duress with and by armed force 
and coercion and thereby affiant was removed from his 
place of employment and barred therefrom, in Detroit, 
Michigan, at the plant and office of the Murray Corpora¬ 
tion of America, affiant’s official credentials seized and 
taken away from him, by a member of the military police 
of the Armed Forces under orders from said Colonel C. D. 
Johnson, and prevented from further occupying his civil 
service position and office, denied his right to perform his 
civilian employment established in the War Department,. 
refused hearing, and deprived of his pay, salary and emolu¬ 
ment attached to his civilian position, under April 2, 1945, 
while plaintiff stood ready, willing and able to perform 
Ms duties and employment at all times involved, and his 


19 


position was ordered filled by a person with less or no 
preference thereto. 

6. On July 28, 1947,' affiant at Jeffersonville, In¬ 
diana, received a Notice of Personnel Action, by mail from 
Philadelphia, Pennsylvania, dated July 24, 1947, after he 
had worked through July 16 to July 28, ' 1947, con¬ 
tinuously on a tour of duty-purporting to suspend affiant 
retroactively during “17 July, 1947, to July 23,1947 (Inc’l) 
without pay” for seven days, not five as proposed in let¬ 
ter of notice signed by Major Newbury, giving no ground 
or reason therefor and contrary to Comptroller’s General’s 
DECISION 22-291 of September 30,1942. 

7. Such letter and notice of personnel action was 
void and usurped authority and power such army officer 
did not have, and was contrary to Section 648 of Title V 
and 576 of Title X, U. S. C. A., deprived plaintiff of the 
rights, privileges and benefits provided by Sections 46a, 
648, 851-869 of Title V, U. S. C. A., and the Civil Service 
Regulations, Sections 9.102 (a) (1) and 22.2 (c) and of 
earned salary, compensation and emolument of affiant’s 

' civil service position and employment performed, 
19 from July 16, 1947, through July 23, 1947, estab¬ 
lished theretofore, without due process of law. 

8. Affiant on July 24, 1947, was restored by the 
proper civilian, the Civilian Personnel Officer of the War 
Department, one Walter L. Lewis at and from Philadelphia 
to the effective payrolls and performed from July 24,1947, 
through September 19, 1947, his full tour of duty and 
employment in his position, acting as chief in charge of 
his field office, at Jeffersonville, Indiana, in the War De¬ 
partment, by proper delegation of authority, during the 
absence of the official in charge of such field office, during 
such time appears on the payrolls and records of such 
agency and received no personnel action notice of any sort • 
to discontinue work or employment. 

, 9. Without personnel action notice or any . notice of¬ 
ficially or otherwise to affiant, his earned pay, salary and 
emolument for thirty days from August 4, 1947, through 1 


29 


September 4, 1947, was accomplished, effected and con- - 
summated by refusal to pay any part thereof due, and the 
whole of such compensation confiscated by order and letter 
of direction signed by Major A. W. Newbury, at Arling¬ 
ton, Virginia, as an officer on the active list of the Army, 
by falsely impersonating and representing himself to be 
“Chief, Civilian Personnel Branch” of the agency. 

10. Affiant at Jeffersonville, Indiana, on September 

19 or 20, 1947, while acting as employee in charge of his 
field office, received a written order signed by one Colonel 
H. B. Bliss, while such Colonel was on the active list of the 
United States Army as a member of the armed forces of 
the United States, which was carried out, directed that 
all affiant’s “office space, desks, equipment, etc.,” then 
assigned to affiant by the agency be withdrawn imme¬ 
diately and affiant was thereupon and thereby barred and 
prevented from performing his duties or occupying his 
civilian position thereafter, though affiant has stood ready, 
willing and able at all times to perform the duties of and 
to occupy his position in said agency. 

11. On September 5, 1947, the United States Civil 
Service Commission made findings and recommendations 
to said agency and delivered them to the proper officer 
of said agency at Philadelphia, Pennsylvania; that the 

orders of Major A. W. Newbury, dated July 11,1947, 

20 and August 4, 1947, were held invalid, and that said 
periods of suspensions were void and of no effect 

and that plaintiff should be immediately reinstated to his 
position as Cost Analyst, grade CAF-11 and that the same 
was mandatory under the provisions of Section 863 of 
Title V, U. S. C. A., the Veterans’ Preference Act of 1944 as 
amended. 

12. No appeal was filed within the time required by 
Civil Service Regulations, Section 22.11 and such findings 
and recommendations became final and conclusive and 
mandatory of enforcement pursuant to the provisions of 
Sections 863 and 868 of Title V, U. S. C. A. 

13. The actions, orders and directions of Colonel C.. 
D. Johnson, Major A. W. Newbury and Colonel H. B. 


21 


Bliss, set forth hereinabove were all consummated while 
all such officers were on the active list of the United 
States Army, and members of the armed forces, in the 
uniform of the United States Army and therefore con¬ 
stituted in the case of Major A. W. Newbury, the accept¬ 
ance, holding and exercising of civil office and the func¬ 
tions thereof, contrary to law, without vacating his posi¬ 
tion or the positions of the other officers and all such 
actions of such officers constituted the exercise of author¬ 
ity and power none had, in violation of law, contrary to 
law in violation of affiant's rights, privileges and im¬ 
munities under Sections 46a, 648, 652, 863 and 868 of Title 
V, U. S. C. A., and the Constitution, while plaintiff and 
affiant at all times had an officially recorded efficiency rat¬ 
ing and conduct of good, better and satisfactory and were 
in direct contravention of Section 576 of Title X, ARMY, 
U. S. C. A., and were void, as without due process of law, 
and the usurpation of authority and power not authorized 
by law. 

14. In the Spring of 1846, at a conference of officials 
of the agency and the Federal Bureau of Investigation, 
affiant was selected and directed to perform an estimated 
3-4 years of certain field reaudit work upon a large num¬ 
ber of War Contract payments and claims, determined to, 
be suspect as fraudulent and involving collusion, and thefts 
of Government properties of the War Department valued 
in totals at multi-millions of dollars. 

15. Affiant accepted the assignment and upon partial 
written orders of a Chief of Procurement, started 

21 performance. 

16. Promptly two of the defendants representa¬ 
tives included in the assignment as suspect in the collusion 
and fraud were re-assigned by those in authority in the 
War Department, as the immediate supervisors in charge 
of this affiant and officially encouraged in writing and 
orally to, and did, engage thereafter, with others con¬ 
tinuously subjecting this affiant to a series of coercive 
ovart acts, threats of physical violence and bodily harm,, 
reduction in grade, low efficiency rating, demand for resig-. 


22 


nation, suspension without pay, reinstatement and “pro¬ 
motion” another suspension in a few days, delivery of 
copies of affiant’s official reports, though classified “RE¬ 
STRICTED,” to those employees being investigated, for 
their illegal use against affiant, higher official engaging in 
oral and written encouragement with such employees 
found involved in actual bribe taking and collusion, fraud¬ 
ulent practices, to make further threats of violence and 
vituperation, to use official reports of affiant to sue him 
civilly and cause affiant’s arrest if possible thereon, us¬ 
ing official telephones and the United States mails to 
transmit threats and vituperation to affiant from those 
involved in the collusion and fraudulent practices, stole 
affiant’s reports as soon as completed and delivered copies 
to those under investigation, at one time Colonel J. H. 
Dickie, F. D. United States Army giving one such em¬ 
ployee, a Maurice G. Alexander, written official authoriza¬ 
tion to demand from affiant the delivery to him for re- 
delivery to said Colonel all work papers, data and copies 
of reports in the possession of affiant which was done 
by said Alexander, but refused by affiant at Jefferson¬ 
ville, Indiana. 

17. Report after report giving detailed facts on this 
situation were transmitted to the defendants named in this 
action and higher level authorities, by this affiant and 
others. No government official, employee or agent, at’ 
any time did other than encourage these nefarious and 
illegal practices and harassment of affiant with the sole 
design, purpose and scheme in combination to cause affiant 
to fail or refuse to perform the written official assignment 
stated hereinbefore, or to voluntarily resign, which latter 
affiant refused to do, though demanded in writing from 
his Philadelphia, Pennsylvania, headquarters by stating 

that if affiant refused to accept a three grade re- 
22 duction in pay, such refusal would be considered 

and construed his volunary resignation. 

18. One higher officer representing defendants, in 
an effort to terminate affiant’s work filed an affidavit with 
the Civil Service Commission wherein appears within the 
four comers on its face rank perjury, directed against affi- 


ant which was refused consideration when submitted, 
and the War Department directed to continue affiant’s em¬ 
ployment, but the next year in 1948 the Civil Service Com¬ 
mission itself accepted such perjury using the same with 
other documents also containing false statements in the 
form of third hand hearsay, secretly and without affiant’s 
knowledge, chance for confutation, hearing or opportunity 
to defend, and one employee of the Civil Service Commis¬ 
sion actually forging a finding and recommendation made, 
by changing the wording in important and material re¬ 
spects in the retained copies in the Commission and dele¬ 
tion of all material in certain affidavits dated November 
14, 1947, which was favorable to affiant relating to the 
matter involved here. 

19. Based on an identical set of notices (excepting ac¬ 
cusations) signed as set forth in paragraphs 6-10 hereof 
and the situation referred to and addressed to one Maurice 
G. Alexander a suspect under investigation by affiant as 
instructed, upon whom evidence of acceptance of bribes 
and collusion in allowance of claims by oral amendments 
thereto had been developed, the above and herein named 
defendants held that the identical notices given to both 
this affiant and said Alexander were fatally defective on 
the face of the notices as given to said Alexander, but that 
as given to this affiant were not, as a part of the scheme 
and purpose stated aforesaid herein, and defendants caused 
to be paid said Maurice G. Alexander’s compensation for 
the same suspension period in the same notices identical 
with affiant’s and ordered him restored to full pay, duty 
and status as CAF-12, all procedures being under the Vet¬ 
erans’ Preference Act, Section 863, Title V, U. S. C. A., 
at or about the same time, contrary to findings and recom¬ 
mendations in the identical case and matter involving Mr. 
Alexander, causing affiant’s forcible removal on Septem¬ 
ber 19,1947, from his place of employment in the War De¬ 
partment and the Department of the Army. 

20. All the statements made in this affidavit are fully, 
supported by the records of the Department of the 

23 Army, the United States Civil Service Commission, 
at Cincinnati, Ohio, Philadelphia, Pennsylvania, and 


24 


Washington, D. C., the Federal Bureau of Investigation at 
Indianapolis, Indiana, and the Department of the Army at • 
Jeffersonville, Indiana, and Washington, D. C., and the 
Department of Justice at Washington, D. C. 

21. On February 24-25, 1948, Major A. W. Newbury 
appeared before this affiant, Messrs. E. N. Steely, J. G. 
Yaden, J. T. W. McBee of the United States Civil Commis¬ 
sion and Wm. Vassel, a civilian legal adviser to Major 
Newbury, and gave testimony under oath, transcribed and 
recorded by such commission, but refused by copy to affi¬ 
ant, that he, said Major, received a telephone call from 
the agency office at Jeffersonville, Indiana, immediately 
upon the receipt of the duplicate letters addressed to this 
affiant and Maurice G. Alexander signed by said Major 
under date of July 11, 1947, and thereupon stated that 
he proposed the 5 days’ suspension, not for any investiga¬ 
tive purpose, but to permit the employees to be away from 
the office to answer the accusation and that no reasons 
otherwise existed for any suspension, and that no other 
“charges” were available for any action, except those con¬ 
tained in said notices, which as contained in the notice of 
July 11, 1947, he admitted were false and without founda¬ 
tion and that further the affidavit of said Major dated Sep¬ 
tember 2, 1947, containing a statement, that relative to af¬ 
fiant and Alexander that “both had repeatedly searched 
i the official files of the Depot and opened safes, etc., which 
rights belonged to neither of them” was false as stated on 
his, said Major’s part in his said affidavit, and that the 
i affidavit of General Harlan L. Mumma, obtained secretly 
by the Civil Service Commission, was correct and true re-, 
lated to the same subject, in question and answer form 
sworn to by General Mumma, under date of November 14, 
1947, as follows: 

“Q. Do you have personal knowledge of any ac¬ 
tion on the part of Mr. Love which would warrant his 
immediate suspension? A. None whatever.” 

and said Major further swore he knew of no charges in¬ 
cluding those he had made against affiant, which would 
warrant suspension or disciplinary action against affiant. 


25 


and that he had been directed by higher authority that the 
suspension of affiant without pay for 5 days on 
24 July 16, 1947, was improper and that the agency 
would forward payment therefore to this affiant, 
and that no reason existed in his mind for suspension of 
affiant at any time, whereupon he was asked by J. G. 
Yaden, an official of the Civil Service Commission, why 
he had not suspended and discharged Mr. Maurice G. 
Alexander, as the files showed plenty of grounds, to which 
he replied falsely that “the Federal Bureau of Investigation 
had advised him that Mr. Alexander was guilty of nothing 
that could be used,” while said Major well knew such 
statement was falsehood and that the records of the Fed¬ 
eral Bureau of Investigation and his (the Major’s) own 
files indicated Mr. Alexander was guilty of many offenses, 
any one of which was sufficient to discharge him, and that 
such files showed no accusation which could be used and 
were available with concrete evidence to prove Mr. Alex¬ 
ander should be discharged from Government employment, 
were used against Mr. Alexander, and both the Major and 
all others charged with duty to do so, refused to bring the 
available charges against Mr. Alexander, including those 
from at least two contractors and at least one negotiator, 
employed in the War Department that Mr. Alexander was 
guilty of taking bribes and raising by oral amendments, 
claims of War Contractors, and allowed them with ap¬ 
proval for payment. 

(Verification and oath of June 14, 1952, omitted.) 



26 


25 Filed July 10, 1952 

(Venue and Title Omitted.) 

AFFIDAVIT OF FAILURE OF DEFENDANTS TO FILE 
OR SERVE ANSWER OR RESPONSE TO 
PROCESS SERVED. 

\ * 

(Venue Omitted.) 

Harold R. Love, being first duly sworn, according to 
law, upon his oath deposes and says, that he is the plain¬ 
tiff named in the above entitled action, and that he caused 
to be served and filed pursuant to the provisions of Rule 
4, F. R. C. P., by the United States Marshal, copies of 
Summons and Complaints in the above entitled action on 
each of the defendants, the Attorney General of the United 
States and the United States District Attorney for the 

r 

District of Columbia, all services completed not later than 
May 4, 1952; 

That as required by the provisions of Rule 12 (a), 
F. R. C. P., no answer, response or motion has been served 
or filed by any defendant, the Attorney General nor the 
United States Attorney within sixty days from May 4th, 
1952, and no further time has been allowed or granted 
or agreed upon; 

That such facts set forth above are made to appear . 
pursuant to the provisions of Rule 55 (a), F. R. C. P., to 
show the default and for the Clerk of this Court to enter 
such default, failure to answer and respond to the Service 
and filed Summons and Complaint herein. 

Harold R. Love. 


(Oath omitted.) 


Filed July 10, 1952 
(Venue and Title Omitted.) 


AFFIDAVIT OF FAILURE TO COMPLY WITH RULE 

9(b) OF THE RULES OF THE UNITED STATES 
DISTRICT COURT FOR THE DISTRICT 

OF COLUMBIA. 

. • * 

(Venue Omitted.) 

Harold RI Love, being duly sworn, according to law 
upon his oath deposes and says, that he is the plaintiff 
named in the above entitled action and that he served and 
filed a MOTION for Summary Judgment on the defend¬ 
ants on June 22d, 1952, as shown by affidavit of service 
filed with the Court and that the same was accompanied 
with statement of specific points and authorities of law 
to support the motion entered on the Court’s docket and 
upon the card provided by the Court’s Clerk; 

26 That a statement of opposing points and au¬ 

thorities has not been filed, noted and served within 
the time required by Rule 9 (b) of this Court amendatory 
to the Federal Rules of Civil Practice for the United States 
District Court, nor within any further time granted by 
this Court or agreed upon; 

That such MOTION may and should be treated as con¬ 
ceded pursuant to the provisions of this Court’s Rule 9 (b). 

Harold R. Love. 

(Oath omitted dated July 5, 1952.) 


Filed August 4, 1952 
(Title and Venue Omitted.) 

OBJECTIONS TO MOTION TO DISMISS. 

To the Honorable Court: 

Under Rule 46, F. R. C. P., the plaintiff presents the 
following Objections to the Defendants’ Motion to Dismiss 
the Complaint: 


28 


1. That Rule 7 of the Federal Rules of Civil Prac¬ 
tice for the United States District Courts requires in sub- 
paragraph (b) thereof that a Motion “shall state with par¬ 
ticularity the grounds therefor ” The Defendants’ Motion 
fails to state with any particularity or specifications, with 
reference to the Complaint, wherein it would appear the 
Court is without jurisdiction of the subject matter, or 
wherein it failed to state a claim upon which relief may 
be granted. 

2. That “res judicata” is an affirmative defense and 
Rule 8 (c), F. R. C. P., requires: 

“In pleading to a precedent pleading, a party shall 
set forth affirmatively * * * res judicata * * *.” 

Authorities. 

Zeligson v. Hartrrum-Blair, Inc., (C. C. A. Kan., 
1943) 135 F. 2d 874. 

17. S. v. Kusche, (D. C. CaL, 1944) 56 F. Supp. 201. 

Hartford-Empire Co. v. Glenshaw Glass Co., (D. 

C. Pa., 1942) 47 F. Supp. 711. 

Ratner v. Paramount Pictures, (D. C. N. Y., 1947) 
6 F. R. D. 618. 

Jones v. Miller, (D. C. Pa., 1942) 2 F. R. D. 479. 

m Stoddard v. Morrin, (D. C. D. C., 1942) 8 F. R. 

D. 375. 

The action the plaintiff desires the honorable court 
to take, is to consider, rule and pass upon, the above ob¬ 
jections and on them deny the motion to dismiss cf the 
defendants by a proper order. 

August 2, 1952. Harold R. Love. 


♦This is a decision definitely in point of the above named 
court. ;. 



29 

27 Filed August 4, 1952. 

(Venue and Title Omitted.) 

OBJECTIONS OF PLAINTIFF UNDER RULE OF THE 

UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OF COLUMBIA, RULE 9 (b). 

To: The Honorable Court and the United States Attor¬ 
ney: 

Pursuant to Rule 46, F. R. C. P. and Local Rule 9 (b) 
of the above named court the below stated OBJECTIONS 
are presented and made relative to the purported attempt 
to serve POINTS AND AUTHORITIES IN OPPOSITION 
TO PLAINTIFF’S MOTION FOR SUMMARY JUDG¬ 
MENT: 

1. The above named Court’s Local Rule 9 (b) re¬ 
quires such statement of opposing points and authorities 
to be filed within five days after the service and filing 
of the Plaintiffs MOTION FOR SUMMARY JUDGMENT. 

2. The files in the action show that the Plaintiffs 
MOTION FOR SUMMARY JUDGMENT, supporting af¬ 
fidavit and separate Statement of his POINTS AND AU¬ 
THORITIES were served upon the Attorney General and 
the United States Attorney and filed with the Court, on 
or about June 23, 1952. 

3. The defendants have failed to serve or file state¬ 
ment of opposing points and authorities to the Plaintiffs 
MOTION FOR SUMMARY JUDGMENT within the time 
required. ..... 

4. Plaintiff has filed in the Court, his affidavit show¬ 
ing such failure to comply with Rule 9 (b) of this Court, 
which affidavit is dated July 5,1952. 

The Plaintiff makes this showing and calls the same 
to the honorable Court’s attention, in order that this 
Court shall make its order pursuant to Rule 9 (b) of the 
Court, rejecting such filing if made, and such service 
on the above grounds and shall treat the motion of 
plaintiff as conceded, for summary judgment. 

August 3, 1952. ' Harold R. Love. 



30 


28 Filed August 4, 1952. 

(Venue and Title Omitted.) 

AFFIDAVIT OF SERVICE OF OBJECTIONS TO 
SERVICE AND FILING OF DEFENDANTS’ 
OPPOSING POINTS AND AUTHORITIES. 

(Venue Omitted.) 

Harold R. Love, being first duly sworn, according to 
law, deposes and says, that on August 3, 1952, he served 
true and correct copy of his OBJECTIONS OF PLAIN¬ 
TIFF UNDER RULE OF THE UNITED STATES DIS¬ 
TRICT COURT FOR THE DISTRICT OF COLUMBIA, 
RULE 9 (b), on the above named defendants, by mailing 
to the United States Attorney, for the District of Colum¬ 
bia, at his office and proper address, Department of Jus¬ 
tice, Washington 1, D. C., by enclosing the same in a sealed 
first class airmail prepaid postage envelope, with sufficient 
postage affixed thereto, and deposited the same in the 
United States Post Office at Minneapolis, State of Min¬ 
nesota. 

(Oath Omitted.) 

Harold R. Love. 


Filed August 4, 1952. 

(Title and Venue Omitted.) 

OBJECTIONS TO MOTION TO DISMISS AS TO 
THE SERVICE THEREOF. 

To: The Honorable Court and the United States Attor¬ 
ney: 

Under Rule 46, F. R. C. P., the Plaintiff presents and 
makes the following OBJECTIONS against the service of, 
and to the Defendants’ MOTION TO DISMISS: 

1. The Defendants are in default of response by an¬ 
swer or motion served as shown by affidavit, dated July 
7, 1952, of the Plaintiff filed. 


31 


2. Rule 4 (5), F. R. C. P., has been complied with, 
by the United States Marshal making the proper services 
upon all defendants and the United States Attorney and 
the Attorney General, as shown in the file in this cause. 

3. Rule 12 (a), F. R. C. P., requires service of an 
answer or motion by the defendants, within 60 days after 
the service upon the United States Attorney of the plead¬ 
ing in which the claims are asserted. No answer, nor 
motion has been served within such 60 days’ period, nor 
was the Defendants’ MOTION TO DISMISS claimed to 
be served, or mailed, within such 60 days’ period, therefore 
it cannot be considered nor accepted, for that, and those 
above stated reasons, as shown by the files and records 
in this case. 

29 4. The out of time service thereof and therefor, 

is rejected and not accepted by the plaintiff named 

above. 

\ 

5. The additional objections made hereafter in addi¬ 
tional objections, the submission of Points and Authorities 
and affidavit related to the falsification of certificate of 
service, are not to be construed or considered as waiving 
the objections set forth above, but are submitted in the al¬ 
ternative, and not in lieu of the above objections Nos. 1-4, 
inclusive, such additional objections bearing the same date, 
August 2, 1952, as below. 

Harold R. Love. 

August 2, 1952. 

Filed August 5, 1952. 

(Venue and Title Omitted.) 

AFFIDAVIT OF SERVICE BY MAIL. 

(Venue Omitted.) 

Harold R. Love, being first duly sworn, according to 
law, deposes and says, that on August 3, 1952, he served 
true and correct copy of OBJECTIONS TO MOTION TO 




32 


DISMISS AS TO THE SERVICE THEREON, on the above 
named defendants, by mailing to the United states Attor¬ 
ney, for the District of Columbia, at his office and proper 
address, Department of Justice, Washington 1, D. C., by 
enclosing the same in a sealed first class airmail prepaid 
postage envelope, with sufficient postage affixed thereto, 
and deposited the same in the United States Post Office at 
Minneapolis, State of Minnesota. 

Harold R. Love. 


(Oath omitted.) 


Filed August 6, 1952. j 

ADDITION TO OBJECTIONS TO MOTION 
TO DISMISS. 

To: The Honorable Court and the United States Attorney: 

The Plaintiff desires to place before the Honorable 
Court these quoted words from the above named Court’s 
decision of Justice Bailey from Stoddard v. Morrin et al., 8 
F. R. D. 375, at page 376: 

30 “Certain of the defendants have moved to 

dismiss the complaint upon the grounds: 

1. That the Complaint failed to state a cause of 
action; 2, that the same claim has been adjudicated 
in another action brought in this court; and 3, that in 
the same action judgment was entered in favor of the 
defendants. An affidavit supporting these facts has 
been filed as a part of the motion. 

The question to be determined as to the 2nd and 
3rd grounds of the motion is whether a motion to dis¬ 
miss based on grounds not appearing on the complaint 
will lie. Rule 12 (b) of the Rules of Civil Procedure, 
28 U. S. C. A., provides that six classes of defenses may 
be made by motion. One of the first of these involve 
the question here presented. The sixth ground upon 
which a motion may be heard is: ‘failure to state a 
claim upon which relief may be granted.’ Some courts 
have held that although nothing may appear on the 


33 


face of the complaint which shows that the cause of 
action is barred by res judicata, that fact may be 
shown by affidavit and upon that being done a motion 
to dismiss will lie. I do not agree with this view. A 
complaint may state a claim upon which relief can 
be granted. If it does not, a motion to dismiss will lie. 
To hold otherwise would permit any defense to be 
raised by affidavit as a basis for a motion. I do think 
that, if a complaint shows on its face that the cause 
of action is barred by laches or the statute of limita¬ 
tions, a motion to dismiss will lie, and this is in ac¬ 
cordance with the practice under the old equity rules, 
but the present rules in my opinion require that the 
defense of res judicata should be raised ‘in the re¬ 
sponsive pleading.’ The motion to dismiss should be 
overruled.” 

It can be noted nothing appears in the complaint in 
the above entitled action that indicates any part thereof 
would be res judicata. 

Harold R. Love. 

August 4, 1952. 

Filed October 14, 1952. 

(Venue and Title Omitted.) 

PLAINTIFFS AFFIDAVIT. 

(Venue Omitted.) 

Harold R. Love, being first duly sworn, according to 
law, upon his oath, deposes and says, that he makes the 
averments and alleges the facts stated hereinafter, on his 
own personal knowledge, except as qualified, and that the 
same would be admissible in evidence and affirmatively 
states affiant is competent to testify to the matters stated, 
and such affiant shows as follows: 

He is the person-plaintiff who brought the above en¬ 
titled suit. 



34 


If ever there was a case in which a man was active in 
trying to secure his rights, the plaintiff was in this in¬ 
stance, related to his “FIRST’ complaint. 

Affiant protested all over the lot. 

He wrote letters of protest and received replies par¬ 
tial ly indicated hereinafter and brought suits indicated 
herein, on such “first” complaint now appearing in the 
above court. 

31 On December 28, 1944 (the day after receiving 

the telegram referred to in the complaint p. 2, par. 4) 
he wrote the civilian personnel officer at Detroit, Mich¬ 
igan, of the agency protesting the action. 

On December 31,1944, he wrote the signer of the tele¬ 
gram protesting the action. 

On January 5, 1945, he wrote Colonel Johnson, the 
signer of the telegram again protesting his action, called 
attention to the requirements of the Veterans’ preference 
Act of 1944 (Sec. 863, Title V, U. S. Code). 

On January 5, 1945, he wrote and filed an appeal un¬ 
der the Veterans’ Preference Act with the Civil Service 
Commission at Detroit, Michigan, of four single spaced typ¬ 
ing pages, elaborately setting forth the facts, appeal, etc. 

On January 14,1945, he wrote the Chief of the Civilian 
Personnel Section, Personnel and Base Services Division, 
Detroit, Michigan, of the agency, a 14 page, single spaced 
submission, elaborately outlining his protest for immediate 
reinstatement and on January 16, 1945, wrote the same 
official a further four page submission on the matter. 

Under date of January 29, 1945, he received a com¬ 
munication from the Civil Service Commission of Detroit, 
Michigan, signed by the Manager thereof, refusing to rec¬ 
ognize plaintiff’s rights under the Veterans’ Preference 
Act of 1944. 

In February, 1945, he received a communication from 
the Manager of the Civil Service Commission at Detroit, 


35 


Michigan (which original plaintiff can not at the moment 
locate), stating plaintiff would be, as soon as possible, re¬ 
instated to position and pay, but still refusing to recognize 
plaintiff’s rights under the Veterans’ Preference Act, but 
as the result of which plaintiff was later, on April 2, 1945, 
restored to position and pay in the agency, at a two grade 
increase, in CAF-11 classification, as alleged and set forth 
in the complaint here ( First-page 2, paragraph 5). 

On February 8, 1945, he again wrote Colonel Johnson 
the signer of the telegram referred to in the first com¬ 
plaint. 

32 On February 14, 1945, he again protested to the 

Chief Clerk of the Agency, at Detroit, Michigan. 

On February 25, 1945, he appealed to the Board of Ap¬ 
peals and Review of the Civil Service Commission at Wash¬ 
ington, D. C., related to the precise matter in a 22 page sub¬ 
mission, single spaced, but got no response. 

In 1945, he took the matter involved, up with attorneys 
at Detroit, Michigan and Louisville, Kentucky, for prepara¬ 
tion of a suit for declaratory judgment, who prepared and 
caused to be filed a suit on December 26, 1945, in the 
United States District Court, Eastern District, Michigan, 
at Detroit, entitled Harold R. Love v. Stanley et al.. Civil 
Action No. 5433, involving the same subject matter as the 
“FIRST” complaint before the court here. That suit was 
pending for a long time, during which the defendants 
sought and obtained from the attorneys, representing this 
affiant at Detroit, Michigan, many extensions of time to 
respond thereto and delayed the matter coming up. Dur¬ 
ing such time at a conference with the defendants’ at¬ 
torneys, Judge Lederle handling the case suggested he 
would re-draw the complaint for affiant, which offer 
was declined at which time Judge Lederle expressed doubt 
that such district court had jurisdiction to entertain the 
suit. The complaint was redrafted by attorneys at De¬ 
troit for affiant and an amended complaint filed, to which 
defendants interposed a motion to dismiss and sometime 
thereafter (in November or December, 1946, or early in 




36 


1947) Judge Lederle dismissed Civil Action No. 5433 by 
Order of the Court, giving no reason therein for such 
dismissal. 

Early in 1949, affiant instituted suit in the United 
States District Court of Minnesota, Third Division, at St. 
Paul, Minnesota (No. 1617), entitled Love v. Roy all et al., 
on the same matter involved in the above referred to 
Michigan District Court, and constituting the same matter 
in the “FIRST” complaint here, which on an appeal to 
the Eighth Circuit Court, was dismissed on the ground 
those district courts did not have jurisdiction, which dis¬ 
missal read as follows (per curium —179 F. 2d 6): 

“* * * The defendants moved for a dismissal upon 

the ground * * * that no jurisdiction was acquired 

* * * 

It is our opinion that the United States has not 

consented to be sued in an action such as this * * * 

that the District Court would have no jurisdiction to 
render judgment against Kenneth C. Royall, 
33 - who was served with process outside of the 

territorial jurisdiction of the District Court 

* * * or against the Department of the Army * * 

On January 18, 1945, affiant again protested to the 
Chief, Civilian Personnel Section, of the agency at De¬ 
troit, Michigan. 

On January 22, 1945, he wrote again in protest and 
appealed to the Board of Appeals and Review of the Civil 
Service Commission at Detroit, Michigan, in a lengthy 
submission and got no action. 

On January 25, 1945, he wrote the Office of the Air 
Forces Resident Representative, of the agency at Detroit, 
Michigan, in a five page submission, single spaced, and got 
no action. 

On Januuary 26, 1945, again he wrote Colonel C. D. 
Johnson, at Detroit protesting the action and showing his 
' loss of pay, having on January 2, 1945, in a six page sub¬ 
mission called his attention to the applicable laws and 


37 


regulations, and no response or consideration whatever was 
made or given thereto. 

On February 6, 1945, he wrote the Manager of the 
Civil Service Commission at Detroit, Michigan, demand¬ 
ing employment immediately, and some consideration, 
or hearing on the matter, which demand for hearing was 
refused. 

On October 7,1947, affiant was advised by the agency, 
in a communication signed by R. W. Lahti, Administra¬ 
tive Assistant thereof at Detroit, Michigan, that his claim 
relating to the matter shown in the FIRST complaint 
here now before the court, had been forwarded to the Rec¬ 
ords Administrative Center, AFO, Discontinued Projects 
Branch, 4300 Goodfellow Boulevard, St. Louis 20, Missouri. 

In September or October, 1947, while affiant was at 
Louisville, Kentucky, he was contacted by the Claims Of¬ 
ficer of Fort Knox, Kentucky, of the agency and advised 
to amend his claim, which if amended as redrafted for 
him by such claims officer, would be allowed for the 
amount of pay claimed. Such claim as redrafted was 
signed under oath by affiant and filed at Fort Knox, Ken¬ 
tucky, as instructed, but nothing further has been heard 
therefrom to the date below, from such office of the 
agency. 

Under date of October 31, 1947, affiant was advised 
from Headquarters 5th Army, Commanding General, Chi¬ 
cago, Illinois, that such claim had been forwarded to 
34 the Commanding General, Air Material Command, 
Wright Field, Dayton, Ohio, and to address further 
inquiries to such address, but further inquiries at such 
address have been wholly ignored. 

On June 16, 1948, affiant wrote the Chief Finance 
Officer, United States Army, St. Louis, Missouri, regard¬ 
ing the matter involved, and received from there, letters 
and communications, advising the claim was allowed and 
to communicate further with the General Accounting Of¬ 
fice at Washington, D. C., which affiant did, without any 
action yet to date being taken thereon, for the purpose 




38 


of allowance of the pay claimed from December 27, 1944, 
to April 2, 1945. 

On the same matter, affiant on July 8, 1948, wrote 
the Chief Civilian Payroll Administration Division, De¬ 
partment of the Army, at St. Louis, Missouri, regarding 
the matters involved, and in reply to communication from 
Lt. Col. S. H. Smith, Army Finance Center, St. Louis, 
Missouri, to this affiant stating the latter could not locate 
my claim, and suggesting that this affiant write to Fort 
Meade 2, Maryland, regarding the matter involved and 
further communication from Lt. Col. Carl J. Melnick, 
Chief, Adjustment Division, Army Finance Center, Office 
of Chief of Finance, St. Louis, Missouri, which last ad¬ 
vised this affiant that such officer could not determine 
the exact nature of affiant’s claim, referring affiant back 
again to the Claim Officer at Fort Knox, Kentucky. 

On July 19, 1948, affiant again wrote the Adjustment 
Division, Army Finance Center, St. Louis, Missouri, en¬ 
closing copy of all his submissions in the matter involved 
and requesting some action be taken thereon, with no 
resulting action whatever. 

On July 25, 1947, affiant wrote the Judge Advocate, 
United States Army, Washington, D. C., with copy thereof 
to the Adjustment Division of the Finance Center, at 
St. Louis, Missouri, reciting in an elaborate submission 
all the matter involved, with again no resulting action. 

On October 3, 1948, affiant wrote the Agency at St. 
Louis, Missouri, asking action regarding the communica¬ 
tion received previously which stated the claim for pay 
during the suspension period from December 27, 1944, to 
April 2, 1945, had been allowed, but got no reply what¬ 
ever. 

Under date of November 1, 1948, affiant received a 
communication from the Department of the Army, 
35 Judge Advocate General, Washington, D. C., advis¬ 
ing affiant that he must within 30 days of the re¬ 
ceipt thereof in duplicate, file an appeal, to the Assistant 
Secretary of the Army which should set forth fully the 


39 


grounds upon which affiant relied. This affiant did, and 
got no action thereon. 

Under date of September 19, 1950, affiant received 
a communication signed by M. D. Soldano, Claims Re¬ 
viewer, General Accounting Office, Washington, D. C., re¬ 
lated to the precise matter involved, advising affiant there¬ 
in, that the Department of Justice was considering the 
matter, and that the General Accounting Office would 
therefore take no action on the claim, but would hold 
it in abeyance. 

Under date of July 11, 1952, affiant received a letter 
from the General Accounting Office, Washington 25, D. C., 
advising that 

“every effort is being made to dispose of the matter 
presented, as promptly as present circumstances will 
permit” 

affiant having been under date of October 17, 1950, pre¬ 
viously advised over the signature of Claims’ Reviewer 
of the G. A. O., J. A. Hart, as follows: 

“Reference is made to your letter postmarked 
September 21, 1950, relative to a claim * * * filed with 
this office in August 1947 covering the period Decem¬ 
ber 27, 1944 to April 2, 1945, as cost accountant, 
CAF-9, with the Army Air Corps, Detroit, Michigan. 

* * * * * * * 

When information is received in this office that 
all suits filed by you for compensation alleged to be 
due from the Department of the Army, or Air Forces, 
have been finally disposed of by the courts, a com¬ 
plete report relative to any claim filed with this office 
will be obtained from the administrative office in¬ 
volved, and you will be notified of the action taken. 
Until such time, it appears that further correspondence 
concerning the matter would serve no useful purpose.” 


Under date of November 1, 1951, affiant was advised 
over the signature of L. B. Swartz, Chief, Police, Regula¬ 
tions and Procedures Branch, Department of the Army, 




Office of the Secretary of the Army, Washington 25, D. C., 
regarding the matter involved for pay during the suspen¬ 
sion (purportedly) period of December 27, 1944, to April 
2, 1945, as follows: 

“Since your claim has apparently been submitted 
also to the General Accounting Office, the Department 
of the Army will take no further action thereon, ex¬ 
cept to provide such information or recommendations 
as the General Accounting Office may request.” 

and under date of November 27, 1951, over the signature 
of P. W. Sours, Chief of Section, General Accounting 
Office, Washington, D. C., this affiant was advised: 

36 “* * * relative to your claim for pay from 

December 27, 1944 to April 2, 1945 * * * to¬ 
gether with other benefits, as an employee of the De¬ 
partment of the Army. 

You are advised that your consolidated claim has 
been assigned the number shown above. * * * 

Your claims are receiving consideration and you 
will be notified of the action taken thereon.” 

but to the date below affiant has not been advised of any 
action taken. 

Under date of June 17, 1952, affiant was advised over 
the signature of what looks like M. Soedstun (indecipher¬ 
able to any great extent) Claims Reviewer of the General 
Accounting Office, Washington, D. C., as follows: 

“As to your other claim, you are advised that the 
records of this office show that you now have pending 
in court Civil Action No. 1887-52, which involves claims 
similar to those filed with this office. 

• Accordingly, action on said claims is being held in 
abeyance until the matter is finally disposed of by 
the court.” 


41 


the contents of which letter refer to the action before this 
District Court in the First Complaint therein, of No. 
1887-52 by this plaintiff. 

Further affiant sayeth not. 

Harold R. Love. 

(Verification and oath omitted.) 

Filed November 5, 1952. 

(Venue and Title Omitted.) 

MEMORANDUM. 

Plaintiff, an honorably discharged veteran of World 
War I, acting as his own attorney, has brought this suit 
alleging that his suspension from government service in 
1944 and 1947 were illegal, and that the removal in 1951 of 
his name from the Civil Service register for appointment 
as Internal Revenue Agent was wrongful. Although it is 
not clear precisely what relief plaintiff is seeking, it would 
appear that he is asking the Court to declare his suspen¬ 
sions illegal, and to compel defendants to give him a hear¬ 
ing with respect to the removal of his name from the Civil 
Service list. 

Defendants have moved to dismiss the action, on the 
grounds that the claim with respect to the 1944 suspension 
is res judicata, and is barred by laches; that the claim with 
respect to the 1947 suspension is res judicata, and that the 
removal of plaintiff’s name from the Civil Service list is 
a matter of administrative discretion which cannot be re¬ 
viewed judicially. Plaintiff has moved for summary 
37 judgment. These two motions are before the 
Court. 

Ordinarily, res judicata and laches are affirmative de¬ 
fenses which under Rule 12 (b) should properly be raised 
by a responsive pleading. Under the Federal Rules, how¬ 
ever, these defenses have been raised by motion, and it 
appears that where substantive rights of the parties are 
not endangered, the manner of raising the defense is un¬ 
important. Hartman v. Time, Inc., 166 F. 2d 127; 348 




42 


Bloomfield Ave . Corp. v. Montclair Mfg. Co., 90 F. Supp. 
1020. Plaintiff has been given full opportunity to present 
his position with respect to these issues, and it does not 
appear that his rights will be jeopardized by considering 
them on motion. 

Defendants have referred the Court to two decisions of 
the Court of Claims in support of their defense of res judi¬ 
cata. In Love v. United States , 104 F. Supp. 102, the Court 
of Claims held that plaintiff’s claim for back salary for 
the 1944 suspension was barred in that Court by the 
Statute of Limitations, Title 28, United States Code, Sec¬ 
tion 2501. There was, however, no ruling as to the legality 
of plaintiff’s suspension, and therefore plaintiff’s action 
with respect to the alleged illegal suspension in 1944 is 
not res judicata. 

Defendants state that because plaintiff waited until 
1952 to file suit in this court for an alleged illegal suspen¬ 
sion in 1944, his action is barred by laches. Plaintiff denies 
that he is guilty of laches. Although it appears that plain¬ 
tiff has written numerous letters concerning his alleged 
illegal suspension, and that he has filed suits in at least 
two other District Courts which were dismissed apparently 
for lack of jurisdiction it would seem that plaintiff has 
done nothing to effectively assert his rights for 8 years, and 
therefore his action is barred in this court under the doc¬ 
trine of laches. Grasse v. Snyder, 89 U. S. App. 152; Arant 
v. Lane, 249 U. S. 367; Baxter v. Pace, 89 U. S. App. 392. 

38 In Love v. United States, 98 F. Supp. 770, the Court 
of Claims held that plaintiff’s suspension and re¬ 
moval, from government service in 1947 were procedurally 
correct, and that he had been accorded all the rights to 
which he was entitled. Said ruling bars plaintiff’s claim 
that his 1947 suspension was illegal. 

With respect to the portion of plaintiffs complaint 
seeking to compel defendants to grant him a hearing con¬ 
cerning the removal of his name from the register for ap- 


1 Love v. Royall, 179 F. 2d 5. 


pointment as Internal Revenue Agent, plaintiff has no 
standing to maintain such an action. Perkins v. Lukens 
Steel Co., 310 U. S. 113; Powell v. Brannon, 196 F. 2d 871; 
Keim v. United States, 177 U. S. 290, 295. 

Plaintiff’s motion for summary judgment is denied. 
Defendants’ motion to dismiss is granted. 

Bumita Shelton Matthews, 
Judge. 

October 31, 1952. 

Filed November 7, 1952. 

(Venue and Title Omitted.) 

AFFIDAVIT SUPPORTING MOTION FOR 
SUMMARY JUDGMENT. 

(Venue Omitted.) 

Harold R. Love, being first duly sworn, according to 
law, deposes and says, that at all times involved the files 
and records of the above named defendants contained the 
facts set forth herein and defendants were aware thereof; 
and had knowledge of such facts: 

That immediately after each of the acts complained of, 
or the receipt of the documents signed by the Army Of¬ 
ficers, specified in the complaint served and filed herein¬ 
above, affiant presented documentary proof and evidence 
that such officers were on the active list in uniform of the 
United States Army, at and during the times set forth in 
the complaint and that they acted solely as such as part of 
the military establishment and possessed no right to exer¬ 
cise any civil function; and called attention to, and de¬ 
manded consideration of, and ruling thereon, that all such 
acts were void and contrary to Section 576, Title X, ARMY, 
U. S. C., specifically citing the full text of such statute 
for that purpose, to the proper authorities, and the 
above named defendants; and all such officials 
39 and defendants admitted all such proof and evi- 




dence was wholly true and correct, and at no time con¬ 
tested the same; 

That in each suit and matter brought by plaintiff in 
relation to such matters as set forth in the complaint here, 
and at all times subsequent to the acts complained of 
and continuously thereafter, there was presented the same 
evidence, facts and contention that all such acts of the 
members of the military establishment were void, and 
such statute applicable, and everything and matter related 
thereto presented, to effectively bring before such persons 
and officials, and to the various courts and bodies, and the 
Civil Service Commission before whom the matters in¬ 
volved were presented and brought, and at no time was 
ever any contest of the facts made or question raised that 
such statute Section 576 of Title X, ARMY, U. S. C., was 
not applicable, but on the contrary all admitted the same 
was applicable by its terms, on the facts and proof pre¬ 
sented: 

That all the bodies, courts and persons as to whom 
presented as stated herein before, each and every one, in¬ 
cluding the United States Civil Service Commission, and 
the said courts and officials and employees of the Federal 
Government, refused to give any consideration thereto 
and refused to perform their duties thereunder, as they 
swore to perform, or to rule or pass on the contention 
raised by this plaintiff and affiant, that the acts adverse 
to the plaintiff by members of the military establishment, 
by United States Army Officers on the active list were 
void ab initio , at the times presented, as set forth herein¬ 
before, and then at such and all times, presented to them, 
and at no time has any person, body or court passed or 
ruled on the question and point, and applicability of the 
statute, on the facts as presented and known to each of 
them, including the above named court. 

Further affiant sayeth not. 

Harold R. Love. 


(Oath Omitted of November 6, 1952.) 


45 


40 Filed November 10, 1952. 

(Venue and Title Omitted.) 

OBJECTIONS TO RULINGS IN MEMORANDUM OF 
THE COURT DATED OCTOBER 31, 1952. 

Dated October 31, 1952. 

Plaintiff pursuant to Rule 46, F. R. C. P., presents 
these OBJECTIONS to the MEMORANDUM of the Court; 
stated below, not having been afforded opportunity at the 
time the rulings in the memorandum were made, to object 
thereto, and states he desires the Court to specifically rule 
upon these objections and amend the memorandum ac¬ 
cordingly, grant plaintiffs Motion for Summary Judgment 
and deny Defendants’ Motion to Dismiss. 

Laches. 

1. Plaintiff was denied opportunity to present oral 
argument to effectively oppose the ruling that the matter 
involved in the “First” complaint was not subject to laches. 

2. The Court was without authority to destroy the 
substantive right accruing to Plaintiff by waiver under 
Rule 12 (h), F. R. C. P., created by defendants at no time 
presenting any claim of laches in any responsive pleading . 

3. That the Court is without authority to suggest 
on its own account, as was done at the hearing on the 
motions, that the complaint was subject to the defense of 
laches. 

4. That the Court’s finding in the memorandum that 
the defense of laches was raised by motion is neither 
supported by the record or any fact. 

5. That the Court’s memorandum has ruled that the 
defense of laches is denied, putting that defense in issue, 
and therefore the Court is without authority to determine 
summarily, without trial such issue. 

6. That laches was not present, when as shown by 
affidavits including one dated November 6, 1952, not con- 



sidered by the Court, that continuously after the acts 
complained of in the “First” complaint, plaintiff presented 
the matters involved, to the proper authorities, imme¬ 
diately and continuously thereafter, in all respects, par¬ 
ticularly the question whether an officer on the active list 
of the Army can properly exercise a civil function 
41 contrary to Section 576 of Title X, ARMY, United 
States Code (Affidavit dated November 6, 1952) 
and when as shown (Affidavit dated OCTOBER 10, 1952, 
attached to Plaintiff’s prior OBJECTIONS—page 4, next 
to last paragraph) his claim involved in his “First” Com- 
plavnt here, was allowed wherein he was advised to com¬ 
municate further with the General Accounting Office; and 
further in the affidavit (dated November 6, 1952) not yet 
considered by the Court, immediately after and continu¬ 
ously to date, the matter contained in the “First” com¬ 
plaint was presented to all proper officials including the 
specific defendants now before the Court, on the particular 
point and question the Court now refuses to rule upon, 
to-wit, that an Army Forces’ Officer on duty can not exer¬ 
cise a civil function for the purpose of suspending plain¬ 
tiff indefinitely from his civil service job and pay, as un¬ 
lawfully done here and admittedly so shown at all times 
after the acts complained of, put definitely in issue at 
all times, but never passed on, defendants thereby re¬ 
fusing to perform their sworn duty to uphold the law and 
the Constitution, and refusing to rule on such question 
and statute and failure of due process, which now this 
Court is asked to rule upon by way of declaratory judg¬ 
ment, asked for clearly, to decree that such actions were 
contrary to Section 576 of Title X, ARMY, United States 
Code, pursuant to the Declaratory Judgment Act (Section 
2201, Title 28, U. S. C. A., and Rule 57, F. R. C. P.), the 
Court, inferentially at least, having ruled it had juris¬ 
diction of the matters involved, in the “First” complaint. 

7. The affidavit of November 6, 1952, shows such 
matter set forth in the above objections were presented 
in each suit brought by Plaintiff in relation to such matter, 
the facts never contested, but admitted at all times. 


47 


8. In no suit or presentation, including the two re¬ 
cently before the Court of Claims, Love v. U. S., 104 F. 
Supp. 102; and Love v. U. S., 98 F. Supp. 770, referred to 
in the Court’s memorandum as before it on reference by 
Defendants, does there appear any claim of a defense of 
“laches”; indicating clearly, as also here in this above en¬ 
titled action, that under the Federal Rules of Civil Proce¬ 
dure for the United States District Courts, Rule 12 (h) 

and Rule 16 (h) of the Court of Claims , which 
42 reads: 

“A party waives all defenses and objections 
which he does not present either by motion as here¬ 
inbefore provided, or if he has made no motion, in 
his answer or reply (with certain exceptions not in¬ 
cluding laches ) * * *” 

which points up with great clarity that that alleged de¬ 
fense was never present, and was only (and that after a 
condition existing wherein a definite waiver thereof was 
present) off the record raised, because the Court had in¬ 
dicated (erroneously) it might be presented and would be 
considered regardless of the waiver, and as far as defend¬ 
ants were concerned they knew it was not present, which 
is the very reason they did not make it in any responsive 
pleading as required by the rules in each instance govern¬ 
ing waiver of such defense. 

9. Contrary to the finding in the Court’s memoran¬ 
dum, this record shows this Plaintiff has done everything 
to effectively assert his right to have the authorities to 
whom presented, the courts and specifically this Court, 
rule and pass upon and interpret the statute, Section 576 
of Title X, Army, U. S. Code, as applying to the fact in 
the “First” complaint, that an active duty Officer of the 
Armed Forces can not exercise any civil function to sus¬ 
pend a civil service employee from duty and pay, and has 
continuously for 8 years so asserted his right (Affidavit, 
November 6, 1952). 






48 


Res Judicata. 

1. The Court in its Memorandum, asserts a finding 
that the “First” complaint is not res judicata because no 
ruling appears in the Court of Claims’ Decisions cited. Yet 
contrary to this ruling asserts the “SECOND” complaint 
is “res judicata” because of the same decisions wherein 
no ruling is indicated at all, on the question, and no facts 
found, related thereto, as to the point that No Officer on 
the active list of the army can exercise a civil function, and 
if he does, his acts are void, and without due process under 
the Constitution, AND CONTRARY to a specific act of 
i Congress (Sec. 576 of Title X, ARMY, U. S. Code). The 
Court appears to have failed to consider the citations on 
this point presented to it by plaintiff, and has not consid¬ 
ered a further citation now presented which holds 

James v. Germania Iron Co., (1901) 107 Fed. 597, 46 
C. C. A. 476, appeal dismissed 1904, 25 S. Ct. 786, 195 
i ' U. S. 638, 49 L. Ed. 356—that RES JUDICATA 
43 does not apply: 

“* * * to matters which might have been, 

but were not litigated.” 

That decision including those others the Plaintiff asked 
the Court to carefully consider on the facts admittedly 
present here, as shown in the Complaint and affidavits. 

It is respectfully presented, the Court should amend 
its memorandum in accordance with the request made at 
the beginning of this submission, consider these objections, 
and rule upon the same. 

Harold R. Love, pro se. 

November 9, 1952. 


49 


Filed November 19, 1952. 

(Title and Venue Omitted.) 

ORDER. 

This cause having come on to be heard upon defend¬ 
ants’ motion to dismiss and upon plaintiff’s motion for 
summary judgment, it is by the Court this 19th day of 
November, 1952. 

Ordered, That defendants’ motion to dismiss be and 
the same hereby is granted, and it is, 

Further Ordered, That plaintiff’s motion for summary 
judgment be and the same hereby is denied. 

Bumita Shelton Matthews, 
Judge. 


Filed December 29, 1952. 

(Title and Venue Omitted.) 

NOTICE OF APPEAL. 

Notice Is Hereby Given, that Harold R. Love, plaintiff 
above named, hereby appeals to the United States Court 
of Appeals for the District of Columbia Circuit, from the 
ORDER of the above named Court of November 19, 1952, 
signed by the Honorable Judge Bumita S. Matthews, dis¬ 
missing the complaint, granting defendants’ motion to 
dismiss and denying plaintiff’s motion for summary judg¬ 
ment and the denial on December 5, 1952, of said Judge 
of plaintiff’s motion for reconsideration, said judgment 
and the whole thereof, as entered on November 19 and 
December 5, 1952, in this action, and matter. 

Harold R. Love. 




50 


44 Filed December 30, 1952. 

(Title and Venue Omitted.) 

DESIGNATION OF CONTENTS OF RECORD 

ON APPEAL. 

To: The Clerk of the Court and the Attorney for De¬ 
fendants: 

The Plaintiff-Appellant designates as the RECORD 
ON APPEAL, the following: 

The complaints, dated April 28, 1952, 

Motion, dated June 14, 1952, 

Affidavit, dated July 7, 1952, 

Affidavit, dated July 5, 1952, 

Objections, dated August 2, 1952, 

Objections, dated August 3, 1952, 

Affidavit, dated August 4, 1952, 

Objections, dated August 2, 1952, 

Affidavit, dated August 4, 1952, 

Objections, dated August 4,1952, 

Affidavit, dated October 10, 1952, 

Memorandum Opinion of Court, dated October 31, 
1952, 

Affidavit, dated November 6, 1952, 

Objections, dated November 9, 1952, 

Order of the Court, dated November 19, 1952, 

Denial of Reconsideration of Order, 

Notice of Appeal, and 
DOCKET ENTRIES. 

Harold R. Love.; 

(Affidavit of service of above on Attorney for defend¬ 
ants on December -26, 1952, by mail, omitted.) 


51 


Filed December 30, 1952. 
(Title and Venue Omitted.) 


STAT] 




ENT OF POINTS OF ERROR. 


1. The Court erred in refusing to determine as a mat¬ 
ter of law, that an Army Officer, who acted as such, while 
on the active list and duty in the army, could not perform 
the civil function of issuing the notices required by Sec¬ 
tions 652 and 863 of Title V, U. S. C. A., suspending or 
discharging a war veteran from his civil service employ¬ 
ment and that Section 576, Title X, ARMY, U. S. C. A., 
prohibited such an officer holding any civil office, made 
his acts void and merely those of a usurper of power he 
did not have. 


2. The Court erred in refusing, on the showing made 
in the complaint, to determine that it stated a claim upon 
which relief could be granted, on the undisputed facts on 
the record. 


3. The Court erred in determining it had no jurisdic¬ 
tion over the subject matter of the complaint, under Sec¬ 
tions 11-305 and 11-306, District of Columbia Code, 1951 

Edition; Sections 11-306 and 11-315 of the same 
45 Code, 1940 Edition; Section 1009, Title V, U. S. C. A., 
and the Constitutional Amendments, Articles V, VI 
and XTV, on the showing made of admittedly determined 
rights and privileges denied, without due process of law 
and contrary to law, denying plaintiff such rights and a 
due declaration thereon as demanded in the complaint. . 

4. The Court erred in refusing to determine that de¬ 
fendants had waived the defense of laches, if any, within 
the purview of Rule 12 (h) when they failed to present 
any such defense by any answer or motion, whatever, and 
ignored plaintiff’s duly presented objections. 

5. The Court erred in ruling that laches appeared on 
facts, showing that immediately December 28, 1944, the 
day after the adverse telegram action of December 27, 
1944, continuously thereafter plaintiff protested, appealed. 




52 


filed claims for his rights with proper authorities and the 
defendants, asserting that the adverse action was void of 
the Army Officer, obtained restoration to his position in 3 
months and 6 days, sued in 1945 for his pay in Federal 
Court at Detroit, Michigan, obtained the allowance of his 
claim for pay in 1948, failed to receive the pay due, sued 
over in 1949 in Federal Court at St. Paul, Minnesota, again 
in 1951 in the Court of Claims; bringing suit finally on 
April 29, 1952, in the District of Columbia, at all times 
presenting the facts and question of law that the action 
adverse to him was void; while Section 71a, Title V, U. S. 
C. A., provided 10 years to present his claims to defendant 
Comptroller General and the General Accounting Office. 

6. The Court erred in ruling the Second Complaint 
was subject to the defense of res judicata, when defendants 
had waived such a defense within the purview of Rule 12 
(H), F. R. C. P., upon their failure to present such a de¬ 
fense by answer or motion, served or filed within the time 
required by Rule (a), F. R. C. P., and obtained no exten¬ 
sion of time to do so, were therefore in default, the record 
further showing, that on September 5, 1947, the Civil 
Service Commission in a final decision, pursuant to Sec¬ 
tions 863 and 868 of Title V, U. S. C. A., 

46 had directed plaintiff’s restoration to position and 
pay, and that plaintiff presented duly specific ob¬ 
jections under Rule 46, F. R. C. P., showing that defendants 
were in default and had obtained no extension of time, 
which objections the court ignored. 

7. The Court erred in failing to determine that Sec¬ 
tion 648, Title V, U. S. C. A., afforded plaintiff protection, 
in any and all events while such statute is applicable to 
plaintiff, against being discharged or dropped, from his 
permanent civil service position in the classified civil serv¬ 
ice, while his record efficiency and conduct rating was 
“very good” and satisfactory at all times involved, and 
such fact is admitted and appears of record in the case. 

u f i» * • 

8. The Court erred in determining that plaintiff’s 
Third Complaint had no standing, wherein is shown plain¬ 
tiff was a war veteran with disability preference, had by 


53 


competitive written civil service examination established 
his qualifications and fitness to certification and appoint¬ 
ment consideration, and as a result thereof had his name 
placed on the register of qualified eligibles for appointment 
and certification as Internal Revenue Agent by defendants, 
who thereafter refused to meet the procedural requirements 
of Section 863, Title V, U. S. C. A., and give plaintiff the 
notice, in advance, showing any and all reasons in detail 
for debarring plaintiff for appointment in the. future. 

9. The Court erred in denying plaintiffs Motion for 
Summary Judgment on the facts shown in the sworn com¬ 
plaint, and the supporting affidavit, and in granting de¬ 
fendants’ Motion to Dismiss, and in refusing to Consider 
plaintiff’s duly presented objections and showing that de¬ 
fendants were in default of timely served or filed answer 
or motion. 

Harold R. Love, pro se. 

(Affidavit of service by mail on December 26, 1952, 
omitted). 


Filed December 30,1952. 

Motion for reconsideration of denial of plaintiffs mo¬ 
tion for summary judgment and granting of defendants’ 
motion to dismiss and said motion for reconsideration is 
denied. 

Matthews, J. 

(See Docket Entry.) 


54 


CIVIL DOCKET ENTRIES. 


1952 

Apr. 29 Complaint, appearance filed. 

Apr. 29 Summons, Copies (4) and copies (4) of Com¬ 
plaint issued. 

47 

Apr. 29 No. 1 served 4-30-52; No. 2 served 5-5-52; No. 3 
served 4-30-52; No. 4 served 4-30-52; United 
States Attorney served 5-5-52; Attorney Gen¬ 
eral served 5-12-52. 

25 Motion of plaintiff for summary judgment; af¬ 
fidavit of plaintiff; served Attorney General 6- 
21-52 M. C. 6-25-52; P&A; filed. 

July 3 Motion of defendants for extension of time to an¬ 
swer complaint and answer motion for summary 
judgment; c/m; P&A; MC 7-3-52 filed. 

July 10 Affidavit of plaintiff of failure of defendants to 
file or serve answer or response to process. 

July 10. Affidavit of plaintiff of failure to comply with 
rule 9 (b) of the rules of United States Dis¬ 
trict Court for District of Columbia; filed. 

July 31 Motion of defendants to dismiss; Appeal of 
Charles M. Irelan, Ross O’Donoghue, United 
States Attorney’s Office; P&A; c/m 7-28-52; 
filed. 

Aug. 4 Affidavit of plaintiff relative to false certification 
of service by United States Attorney; Exhibit 
“A.” 

* .•; . 

Aug. 4 Objections of plaintiff to motion to dismiss; P&A; 

. affidavit of service by plaintiff c/m 8-2-52; filed. 

Aug. 4 Objections of plaintiff in re P&A in opposition 
to plaintiffs motion for summary judgment; 
filed. 


55 


Aug. 4 Objections of plaintiff to motion to dismis s as to 
the service thereof; filed. 

Aug. 4 Appearance of Jesse W. Lewis, for plaintiff; filed. 

Aug. 5 Affidavit of service made by mail; filed. 

Aug. 5 Affidavit of plaintiff of service of object to serve 
and filing of defendants’ opposing P&A directed 
to plaintiffs motion for summary judgment; 
filed. 

Aug. 6 Addition to objections by plaintiff to motion to 
dismiss; filed. 

Aug. 7 Additional P&A in opposition to defendant’s mo¬ 
tion to dismiss; filed. 

Aug. 9 Affidavit of plaintiff as to Service of additional 
P&A in opposition to motion to dismiss 8-6-52; 
filed. 

Oct. 1 Supplemental memoranduum of P&A; of deft.; 

in support of motion to dismiss; CM 10-1-52; 
Appeal Vincent C. Burke, Jr., for defendant 
filed. 

Oct. 2 Copy of letter from Law Clerk of Judge Mat¬ 
thews to Harold R. Love, filed. 

Oct. 14 Objections of plaintiff; P&A; in response to de¬ 
fendant “Supplemental Memo” of P&As, & let¬ 
ter of 10-2-52 from office of Hon. B. F. Mat¬ 
thews, with Plaintiffs affidavit on matter of 
laches, filed. 

Oct. 14 Letter, October 10/52 to Judge Matthews, from 
Harold R. Love, filed. 

Nov. 5 Memorandum opinion denying plaintiffs motion 
for summary judgment (signed) 10-31-52 (N) 
Matthews, J. 

Nov. 7 Affidavit of Harold R. Love, filed. t 

Nov. 10 Objections of plaintiff to rulings in memoran¬ 
dum of court signed 10-31-52 C/M (no date) 
filed. 



Nov. 19 Order granting defendants’ motion to dismiss & 
Plaintiff’s motion for summary judgment is de¬ 
nied. (N) Matthews, J. 

Dec. 29 Notice of appeal to court of appeals; Notice to 
Chas. M. Irelan, $5.00 deposited by Harold R. 
Love, pro se, filed. 

Bond on appeal for $250.00 by Harold R. Love, 
Standard Accident Ins. Company; Power of At¬ 
torney by Assistant Secretary filed. 

Designation of contents of Record on appeal. 
Statement of Points of error; Exhibit (letter of 
transmittal. Filed. 

Dec. 30 Re “Motion for reconsideration of denial of 
plaintiffs motion for summary judgment & 
granting of defendants’ motion to dismiss and 
said motion for reconsideration is denied. Mat¬ 
thews, J. 


Dec. 29 

Dec. 30 









UNITED STATES COURT OF 

FOB THE DISTRICT OF C©HUffl§$ 


'District of Columbia Circuit 


■ FRANK C. PACT), JTl. , SECRETARY OF THE ARMY, 
■ JOHN W. SNYDER , SECRETARY OF THE TREASURY, 
ROBERT RAMSPECK, CHAIRMAN UNITED STATES 
CIVIL SERVICE COMMISSION ET AL., 

Appellees. 


Harold R. Love, pro sc, 
3912-39th Avenue South, 
Minneapolis 6, Minnesota, 
For Appellant. 


Charles M. Irelan and 
Vincent C. Burke, Jr., 

U. S. Attorney and 
Asst. U. S. Attorney, 

U. S. District Court Building, 
>—ms hington, D. C., 

For Appellees. 


frit UNITED 
T OF APPEALS 


j STATES CO UR 






STATEMENT OF QUESTIONS PRESENTED. 


No. 1. The question is whether the Motion for Sum¬ 
mary Judgment of the appellant should have been granted 
on his first two claims for relief, which show appellant, 
a war veteran with disability preference, classified status, 
good efficiency and conduct ratings, as a civil service em¬ 
ploye was “indefinitely” suspended on December 27, 1944 
by an active duty Colonel of the armed forces, and again 
on July 16, 1947 by an active duty Major of the armed 
forces, contrary to Section 576, Title V, U. S. C. A.; di¬ 
rected restored to duty after the first suspension on April 
2, 1945 and the second time on September 5, 1947, by the 
Civil Service Commission determining the suspensions 
were without validity and restoration was mandatory 
under Section 863, Title V, U. S. C. A., which rights the 
appellees failed or refused to enforce thereafter. 

No. 2. The question is whether the Motion to Dis¬ 
miss should have been stricken upon the factual showing 
with proper objections presented, that appellees were 
wholly in default of responsive pleading and not within 
the time requirements of Rule 12 (a) with such motion. 




UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT. 


No- 11,680. 


HAROLD R. LOVE, Appellant, 
vs. 

FRANK C. PACE, JR., SECRETARY OF THE ARMY, 
JOHN W. SNYDER, SECRETARY OF THE TREASURY, 
ROBERT RAMSPECK, CHAIRMAN UNITED STATES 
CIVIL SERVICE COMMISSION AND LINDSAY WAR¬ 
REN, COMPTROLLER GENERAL OF WASHINGTON, 

D. C., Appellees. 


COMPLAINTS IN THE NATURE OF MANDAMUS OR 
MANDATORY INJUNCTIONS IN MATTER OF 
BENEFITS DUE WAR VETERAN. 




* 

■ 


INDEX 

Statement of Questions Presented 

Jurisdictional Statement__ 

Statement of the Case_ 

Statutes, Regulations and Rules_ 

Statement of Points _ 

Summary of Argument_ 

1. Void notices_ 


—flyleaf 

_ 1 

_ 4 

appendix 

* i 

_ 9 


2. Showing on claim for relief___ 

3. Showing on jurisdiction over subject matter_ 

4. Showing on waiver of laches_ 

5. Showing on waiver of res judicata- 

6. Showing on application of Sec. 648, Title V, U. 

S. C. A __ 


7. Conclusions 


L3,38 


Table of Cases 


Corpus Juris Secundum, VoL 14, p. 1156; VoL 67, p. 

107, Sec. 4 b, citing Neal v. Parker, 139 S. W. 204, 

200 Ark. 10 ___ 14 

Alley v. Craig, 97 F. Supp. 576 -16,24 

Brown v. McIntyre, 7 App. D. C. 435, 24 W. L. R. 54 — 19 

Continental Casualty Co. v. U. S., 113 F. 2d 284, 39 F. 
Supp. 598 (Cert, denied) -- 14 

Cromwell v. County of Sac, 94 U. S. 353 - 25 

Cummings v. Baker, 16 App. D. C. 1, 28 W. L. R. 131 25 

Duncan v. Kahariamoku, 386 U. S. 615, 618-- 14 

Elchibegoff v. U. S., 106 Ct Clms. 557 (541), 561 - 19 


T 



n 


Index 


Emich Mtrs. Corp. v. G. M. C., (HL, 1951) 71 S. Ct. 

408, 340 U. S. 558, 95 L. Ed. 594, rehearing denied 
71 S. Ct. 610, 341 U. S. 901, 95 L. Ed. 648 _24-25 

Friedman v. Kellogg, (D. C., D. C.) 54 W. L. R. 129_ 18 

Garfield v. 17. S. ex rel. Turner, 31 App. D. C. 332, 36 
W. L. R. 410_16 

Hayne v. McIntyre, 7 App. D. C. 449, 24 W. L. R. 59_ 19 

Hilton v. Sullivan, 68 S. Ct. 1026-1027 _34,35 

Hurley v. Crawley, 60 App. D. C. 245, 50 F. 2d 1010_ 36 

Jones v. Germania Iron Co., 107 Fed. 597, 46 C. C. A. 

476, 159 U. S. 838, 49 L. Ed. 336, 25 S. a. 786 _ 24 


Laden v. Crosson, No. 13263, U. S. D. C., East. Dist., 

Pa. (1952), and 108 F. Supp. 242 _16,36 


Love v. 17. S., No. 50454 (1952) Ct. Clms., April 8, 



Love v. U. S., 119 Ct. Clms. 486, 98 F. Supp. 779 and 



Love v. 17. S., 104 F. Supp. 102_ 23 

McComb v. Homemakers' Handicraft Corp., 176 F. 2d 
633 _ 18 


McKenzie v. Fisher, 40 App. D. C. 74, 41 W. L. R. 197 _ 16 

N. L. R. B. v. Prettyman, 117 F. 2d 786 _ 14 

Phillips v. Baker, (C. C. A. Cal., 1941) 121 F. 2d 251, 
(Cert, denied 62 S. Ct. 301, 314 U. S. 688, 86 L. Ed. 

551)_20 

Pryor v. McIntyre, 7 App. D. C. 417, 24 W. L. R. 49_ 19 


Riley v. Titus, 190 Fed. 656 _ 17 

Roberts v. U. S., 176 U. S. 221, 20 S. Ct. 376, 379, 44 L. 

Ed. 443 _38 


Sis v. Boorman, 11 App. D. C. 122, 25 W. L. R. 431_ 19 

Snyder v. Buck, 75 F. Supp. 902, 908 - 15 

So. Pac. Co. v. Bogert, 250 U. S. 483, 63 L. Ed. 1099_ 17 

Stoddard v. Morrin, 8 F. R. D. 376 _ 21 


Index in 

Tweed’s Case, 83 U. S. 518,16 WalL 518, 21 L. Ed. 389_ 14 

United States v. Foster and U. S. v. Bwescher, 131 F. 2d 
3 __ 13 

United States v. Jones, (Ct. Clms.) 69 S. Ct 787,336 U. 

S. 641, 93 L. Ed. 938 _ 24 

United States v. Moser, 266 U. S. 242 _ 25 

United States v. Rippetoe, 178 F. 2d 735 _ 34 

United States ex rel. Rodiqwez v. Bowyer, 25 App. D. C. 

121, 23 W. L. R. 164_ 36 

Washington Loan & Trust Co, v. Darling, 21 App. D. C. 

132, 31 W. L. R. 129 _ 19 

Whiteside v. United States, 93 U. S. 247, 23 L. Ed. 882 13 

Wilbur v. United States, 281 U. S. 206, 50 & Ct 320, 74 


L. Ed. 809 __:_16,38 



BRIEF. 


JURISDICTIONAL STATEMENT. 

1. The pleadings are (1) Complaint in three parts in 
the nature of mandamus or mandatory injunction in the 
matter of benefits due a war veteran, praying for a writ 
of mandamus or relief by way of injunction or a declara¬ 
tion of rights, directed to the Secretary of the Army, the 
Secretary of the Treasurer, the Chairman of the United 
States Civil Service Commission and the Comptroller Gen¬ 
eral (Appellant’s App. 1-15), and (2) Motion of appellant 
for a summary judgment related to the first two parts of 
the complaints (Appellant’s App. 15-17) with supporting 
affidavits, determining his rights and that the actions sus¬ 
pending or discharging him were void (Appellant’s App. 
17-25; 33-41; 43-44). 

2. The enactments showing the lower court had juris¬ 
diction, are Sections 11-306 and 11-315 of the District of 
Columbia Code, 1940 Edition, Constitutional Amendments, 
V, VI, and XIV (Appellant’s App. 1), the Administrative 
Procedures’ Act, Sections 1001-1011, Title V, U. S. C. A~ 
(Appellant’s App. 10, 13-14). 

3. This honorable court has jurisdiction upon appeal, 
to review the order and judgment below, by virtue of Sec¬ 
tions 1291-1294, Title 28, U. S. C. A. 

* i 

4. The facts disclosing the basis of contention are 
(A) a war veteran with honorable discharge as a com¬ 
missioned officer of the Army, was employed since July 
3, 1908, as a civilian in various civil service positions in 
Government departments, until September 19, 1947, al- 



ways promoted, never demoted, with record efficiency and 
satisfactory conduct rating of good or better, with per¬ 
manent disabled veteran’s preference, classified status, and 
had completed various probationary or trial periods (Ap¬ 
pellant’s App. 2), (B) while in such status with the Ex¬ 
ecutive War Department, he purportedly was “indefi¬ 
nitely suspended without pay,” without ground or reason, 
by telegram, received December 27, 1944, signed by an ac¬ 
tive duty Army Officer, who possessed no appointing or 
removal power, and contrary to Section 576, Title X, 
ARMY, U. S. C. A., the Bill of Rights and the Veterans’ 
Preference Act, Section 863, Title V, U. S. C. A.; thus 
depriving him of his position and pay for three months 
and six days, until restored with promotion in the War 
Department by the Civil Service Commission, on April 2, 
1945, during which suspended period his papers and per¬ 
son were seized without warrant or justification, against 
his protest, on orders of such army officer, while appel¬ 
lant remained ready, willing and able to perform his duties, 
demanding his rights and appealing continuously for re¬ 
dress, refused and denied (Appellant’s App. 2-5), (C) he 
duly filed claims with the defendants-appellees for his 
pay of which deprived from December 27, 1944, to April 
2, 1945, which were allowed in 1948 by appellees, but 
which were not paid (Appellant’s App. 37), (4) again by 
letter dated July 11, 1947, signed by an active duty armed 
forces’ officer, usurping power, who possessed no appoin¬ 
tive or removal powers, did, contrary to the enactment 
referred to above, effect 35 days’ suspension and discharge 
of appellant, without meeting the procedural requirement 
of advance notice in active duty status for at least 30 days, 
and acting still without authority, retroactively and retro¬ 
spectively, after appellant had fully occupied his position 
and performed his employment through July 27, 1947, de¬ 
prived him of the emoluments attached to his employ- 


3 


ment, from July 16, 1947, through July 27, 1947, without 
ground or reason, contrary to Sections 46a, 648, 652, Title 
V, U. S. C. A., and again by letter in the same manner 
over such armed forces’ officer’s signature, dated August 
4, 1947, without any required reasonable notice, caused 
appellant to be deprived, after he had fully occupied his 
position and performed his employment, of the emolu¬ 
ments of his position, from August 4, 1947, through Sep¬ 
tember 4, 1947, and purportedly discharged him, over such 
Army Officer’s signature (Appellant’s App. 6-8) with mali¬ 
cious intent to prevent appellant performing his assigned 
duties to report fraud and collusion shown in claims and 
thefts of Government funds and property (Appellant’s 
App. 21-25), (D) under date of September 5,1947, in writ¬ 
ing, the Civil Service Commission informed appellant, 
and the proper appellees, that it was their decision such 
actions were void and it was mandatory to immediately 
reinstate appellant to position and pay, and again under 
date of May 26, 1949, recommended the agency effect the 
restoration, retroactively and retrospectively as of July 13, 
1947, which decisions became final and conclusive (Appel¬ 
lant’s App. 8, 20), (E) appellees failed or refused to per¬ 
form their ministerial duties to restore appellant to posi¬ 
tion and pay, contrary to law and their oath of office suf¬ 
fered those without authority to function in their stead to 
deprive appellant of his rights and immunities by actions 
which had no legal standing; (F) as the result of written 
competitive civil service examination, appellant estab¬ 
lished his rights to be placed upon the register of Internal 
Revenue Agents, for appointment, certification and con¬ 
sideration for future appointment thereto, was placed 
thereon on June 7, 1951 (Appellant’s App. 12), (G) on 
August 31, 1951, appellees debarred appellant from con¬ 
sideration for future appointment, giving no ground or 
reason, and removed his name from such register without 



4 


complying with the procedural requirements of Section 
863, Title V, U. S. C. A., the Veterans’ Preference Act of 
1944, as amended (Appellant’s App. 11-15), (H) appellees 
defaulted and failed to serve or file answer or responsive 
pleading, within the time required (Appellant’s App. 26) 
and failed wholly to set forth affirmatively laches as a 
defense in any motion, or res judicata by pleading it in 
response by answer (Appellant’s App. 27-28, 54-56), (I) 
appellant moved for Summary Judgment, with supporting 
affidavits, related to the first and second claims for re¬ 
lief, and asked for a declaratory judgment of his rights, 
immunities and that the acts of the armed forces’ officers 
were void (Appellant’s App. 15-17) with supporting af¬ 
fidavits (Appellant’s App. 17-25, 33-41, 43-44) and (J) the 
court below issued its order denying appellant’s Motion 
for Summary Judgment and granted an untimely served 
and filed Motion to Dismiss of appellees, with an accom¬ 
panying opinion, erroneously stating that appellees had 
pled a defense of laches therein, and later issued formal 
order without further opinion denying appellant’s motion 
and granting that of appellees (Appellant’s App. 41-43, 
47). 


STAT] 


MO I M 


NT OF CASE. 


Truly in short, the case represents 8 years of con¬ 
tinuous effort, before all proper authorities, courts, the 
court below and this court, to have it determined, that 
armed forces’ officers cannot function as civil admin¬ 
istrators to suspend or discharge appellant, a civil service 
employe, with hope that under justice or law, this court 
will yet pass thereon, now refused any consideration or 
review, nullifying the positive intent of the act of Con¬ 
gress in Section 576, Title V, U. S. C. A., by all ignoring 
it (Appellant’s App. 34-41, 43-44). 


5 


The facts material to consideration of the questions 

are: 

1. As contained under the Jurisdictional Statement 

2. The admitted facts more specifically follow from 
the complaint and affidavits. 

3. Appellant’s first claim for relief shows he was for 
many years a permanent status, classified civil service 
employee, who had satisfactorily served various proba¬ 
tionary and trial periods, after honorable discharge from 
war service in the army as a commissioned officer, with dis¬ 
ability preference, very good efficiency and conduct rating 
recorded; was employed after 1908, to September 20, 1947, 
always with promotions, never a demotion, in various ca¬ 
pacities for the United States. On December 27, 1944, by 
telegram signed by an armed forces’ Colonel on the active 
list of the army, who possessed no appointive or removal 
powers, appellant was purportedly suspended, “indefi¬ 
nitely without pay,” without reason, arbitrarily, capri¬ 
ciously and in excess of jurisdiction, without due process, 
on which declaratory judgment was asked that such 
suspension was void and appellees without discretion to 
recognize or permit such action, or for relief by way of 
mandamus or injunction, after all administrative remedies 
had been exhausted, while he stood ready, willing and 
able to perform his duties which it was the ministerial 
duty of appellees to enforce (Appellant’s App. 1-5). 

4. Appellant’s second claim for relief shows him 
with the same status and record, after reinstatement from 
the indefinite suspension on April 2, 1945, in the War De¬ 
partment civil service, where he continuously performed 
his duties until September 20, 1947, under direction and 
orders of the proper civilian authorities. By letter, dated 
July 11, 1947, signed by an officer on active duty with 



6 


the armed forces of the army, again over such an of¬ 
ficer’s signature, a Major, who possessed no powers of 
appointment or removal, but usurping authority as an in¬ 
terloper, contrary to the enactments referred to herein, 
there was effected, appellant’s suspension, without giving 
reason, for 35 days from pay, beginning July 16, 1947, with 
discharge at the end thereof, without meeting the pro¬ 
cedural requirement of at least 30 days’ advance notice, 
in an active duty status, arbitrarily, capriciously, in gross 
bad faith, in excess of authority, without due process, with 
malicious motive, purpose and intent to prevent appellant 
performing his duty to report the frauds perpetrated on 
the United States and thefts of Government property. 
On September 5, 1947, appellant was restored to position 
by final findings and recommendations of the Civil Serv¬ 
ice Commission, which stated therein they were manda¬ 
tory of enforcement and again such Commission on May 
26, 1949, directed the appellees to restore appellant to 
position and pay, retroactively and retrospectively and 
correct the records to show restoration as of July 13, 
1947, leaving appellees with only that ministerial duty 
to perform, which they refused to perform. From July 
16, 1947, through September 19, 1947, appellant was di¬ 
rected by the proper civilian authority, to perform his 
work assigned, and did perform the civil duties of his 
position, on which latter date, and thereafter, he was 
physically barred from performing his duties, and his 
pay due for the period of such purported suspension wrong¬ 
fully confiscated, contrary to the prohibitions contained 
in Section 46a, Title V, U. S. C. A., while he stood ready, 
willing and able to perform his duties, and did perform 
them in fact, until September 20, 1947, upon all of which 
appellant asked, in the same manner, for the same relief, 
as upon the first claim for relief (Appellant’s App. 6-11, 
15-24, 33-41, 43-44). 


5. The last claim for relief shows, in 1951, appel¬ 
lant established, by competitive examination, rights, by 
virtue of which, he was listed on the civil service register, 
for certification and future appointment, as eligible there¬ 
to, for position as Internal Revenue Agent, Treasury 
Department, with preferential status, as a disabled veteran. 
Thereafter appellees debarred him and removed his name 
from all registers, and denied him future certification or 
appointment, without complying with the procedural re¬ 
quirements of the Veterans’ Preference Act. Appellant 
requested reinstatement and reemployment. After exhaust¬ 
ing all administrative remedies, he asked for the same re¬ 
lief as upon his other claims and that appellees be di¬ 
rected to perform their ministerial duties, which they 
had failed or refused to perform (Appellant’s App. 11- 
14). 

6. Appellant served and filed Motion for Summary 
Judgment, supported by affidavits related to his first and 
second claims for relief (Appellant’s App. 15-24, 33-41-43- 
44). 

7. Appellees failed to serve or file any responsive 
pleading or motion, within the 60 days provided by Rule 
12 (a), F. R. C. P., were not granted nor allowed any 
extension of such time, and therefore and thereafter, were 
in default (Appellant’s App. 54-56, Docket Entries). 

8. Outside such Federal Rules, and the time pro¬ 
vided, appellees did serve and file, a Motion to Dismiss, 
which was devoid of any implication laches was in ques¬ 
tion, to which motion appellant served, filed and pre¬ 
sented, proper objections to protect the record, showing 
appellees were in default, had waived such question, if 
any, pursuant to Rule 12 (h), F. R. C. P., and that ap¬ 
pellant relied on the right established by such waiver, 
under the Act of Congress having the force of law (Ap¬ 
pellant’s App. 26-33). 


8 


9. On October 31, 1952, the court below, by memo¬ 
randum, denied appellant’s Motion for Summary Judg¬ 
ment, on the grounds, the first claim for relief was subject 
to laches, the second to res judicata and that the third 
had no standing, refusing to consider for review the con¬ 
tention that armed forces’ officers’ actions while on ac¬ 
tive duty were void, and were prohibited by law, as with¬ 
out due process and those of interlopers, usurping au¬ 
thority they did not have, contrary to Sec. 576, Title V, 
U; S. C. A., and the Constitution, maliciously, arbitrarily 
and capriciously motivated. Erroneously asserted in such 
memorandum, it was stated, that appellees’ motion raised 
laches, which it did not. By order of the lower court, 
dated November 19, 1952, the appellant’s Motion for Sum¬ 
mary Judgment was denied, and appellees’ Motion to Dis¬ 
miss granted, without further opinion (Appellant’s App. 
41-43, 49). 

10. It is appellant’s contention the lower court should 
have granted appellant’s Motion for Summary Judgment, 
and ordered stricken appellees’ Motion to Dismiss, on the 
facts shown, and sustained appellant’s objections to the 
appellees’ motion. 


STATUTES, REGULATIONS AND RULES INVOLVED. 

(These appear in a separate appendix at the end 
hereof—pages a-j.) 

The language in those enactments, with interpreta¬ 
tions of the Civil Service Commission, standing alone, 
when read and applied to the facts, depict injustice, ap¬ 
pellant submits, depriving of position, earned pay, with¬ 
out ground, with improper purpose, and thereafter with 
refusal of the right to work, refusal to give reason or 
hearing; contrary to civil law and order. 





9 

STATEMENT OF POINTS. 

1. The Court erred in refusing to determine as a 
matter of law, that an Army Officer, who acted as such, 
while on the active list and duty in the army, could not 
perform the civil function of issuing the notices required 
by Sections 652 and 863 of Title V, U. S. C. A., suspend¬ 
ing or discharging a war veteran from his civil service 
employment and that Section 576, Title X, ARMY, U. S. 
C. A., prohibited such an officer holding any civil office, 
made his acts void and merely those of a usurper of power, 
he did not have. 

2. The Court erred in refusing, on the showing made 
in the complaint, to determine that it stated a claim upon 
which relief could be granted, on the undisputed facts 
on the record. 

3. The Court erred in determining it had no juris¬ 
diction over the subject matter of the complaint, under 
Sections 11-305 and 11-306, District of Columbia Code, 
1951 Edition: Sections 11-306 and 11-315 of the same 
Code, 1940 Edition: Section 1009, Title V, U. S. C. A., 
and the Constitutional Amendments, Articles V, VI and 
XIV, on the showing made of admittedly determined 
rights and privileges denied, without due process of law 
and contrary to law, denying plaintiff such rights and a 
due declaration thereon as demanded in the complaint. 

4. The Court erred in refusing to determine that 
appellees had waived the defense of laches, if any, within 
the purview of Rule 12 (h), when they failed to present 
any such defense by any answer or motion, whatever, 
and ignored appellant’s duly presented objections. 

5. The Court‘erred in ruling that laches appeared 
on facts showing that immediately on December 28, 1944, 





10 


continuously thereafter appellant protested, appealed, filed 
claims for his rights with proper authorities and the ap¬ 
pellees, asserting that the adverse action was void of the 
Army Officer; obtained restoration to his position in 3 
months and 6 days, sued in 1945 for his pay in Federal 
Court at Detroit, Michigan, obtained the allowance of his 
claim for pay in 1948, failed to receive the pay due, sued 
over in 1949 in Federal Court at St. Paul, Minnesota, again 
in 1951 in the- Court of Claims; bringing suit finally on 
April 29, 1952, in the District of Columbia, at all times 
presenting the facts and question of law that the action 
adverse to him was void; while Section 71a, Title V, U. S. 
C. A., provided 10 years to present his claims to defendant 
Comptroller General and the General Accounting Office. 

6. The Court erred in ruling the Second Complaint 
was subject to the defense of res judicata, when appellees 
had waived such a defense within the purview of Rule 
12 (h), F. R. C. P., upon their failure to present such a 
defense by answer, or motion, served or filed within the 
time required by Rule 12 (a), F. R. C. P., and obtained no 
extension of time to do so, were therefore in default, the 
record further showing, that on September 5, 1947, the 
Civil Service Commission in a final decision pursuant to 
Sections 863 and 868 of Title V, U. S. C. A., not appealed 
had directed appellant’s restoration to position and pay, 
and that appellant presented duly specific objections 
under Rule 46, F. R. C. P., showing that appellees were 
in default and had obtained no extension of time, which 
objections the court ignored. 

7. The Court erred in failing to determine that Sec¬ 
tion 648, Title V, U. S. C. A., afforded appellant protec¬ 
tion, in any and all events, while such statute is applicable 
to appellant, against being discharged or dropped, from his 
permanent civil service position in the classified civil 


11 


service, while his record efficiency and conduct rating 
was “very good” and satisfactory at all times involved, 
and such fact is admitted and appears of record m the 

case. 

8. The Court erred in determining that appellants 
Third Complaint had no standing, wherein is shown appel¬ 
lant was a war veteran with disability preference, had 
by competitive written civil service examination estab¬ 
lished his qualifications and fitness to certification and ap¬ 
pointment consideration, and as a result thereof, tad his 
name placed on the register of qualified eligibles for ap¬ 
pointment and certification as Internal Revenue Agent 
by appellees, who thereafter refused to meet the Pro¬ 
cedural requirements of Sections 863, Title V, U. S. C. A., 
and give appellant the notice, in advance, showing any 
and aH reasons in detail for debarring appellant for ap¬ 
pointment in the future. 

9 The Court erred in denying appellees’ Motion for 
S ummar y Judgment on the facts shown in the complaint 
and the supporting affidavits and in granting appellees. 
Motion to Dismiss, and in refusing to consider appellees 
duly presented objections and showing, that appellees 
were in default of timely served or filed answer or mo- 

tion. 


SUMMARY OF ARGUMENT. 

; x The telegram, letters or notices, signed by com¬ 
missioned officers, while on active duty in the armed 
forces, purporting to suspend or discharge appellant, a 
civilian, from his civil service position in an executive 
department of the United States, were void under Sections 
15 and 576, Title X, ARMY, U. S. C. A. 


12 


2. The complaint states claims for relief, based on 
(1) facts showing appellant was purportedly suspended 
“indefinitely,” contrary to law, by void acts of armed 
forces’ officers, having no appointive or removal powers, 
which it was the authority and duty of appellees to pre¬ 
vent, or reverse; (2) additional facts showing appellant 
was, again, in 1947, purportedly suspended and discharged 
maliciously and capriciously, to prevent him performing 
his assigned duties, contrary to law, by void actions of 
armed forces’ officers, having no appointive or removal 
powers, but duly restored to duty on September 5, 1947, 
by findings and recommendations of the Civil Service 
Commission, which it was the mandatory duty of appellees 
to enforce, who refused to do so; (3) the fact appellant 
performed services during the purported suspension period 
to September 5, 1947, the pay and emoluments of which 
appellees confiscated contrary to Section 46a, Title V, U. S. 
C. A.; and (4) facts showing appellant established his 
preference rights to certification and future appointment, 
as Internal Revenue Agent, had his name placed on the 
register for that purpose, which was thereafter removed by 
appellees who denied him such rights, without meeting the 
procedural requirements of Section 863, Title V, U. S. C. 
A., thereby debarring him for future appointment. 

3. The lower court clearly has jurisdiction over the 
subject matter, under the District of Columbia Code, and 
the Administrative Procedures’ Act, Section 1009 (e), 
Title V, U. S. C. A., including Constitutional provisions. 

4. Appellees waived, under the Rules of Federal Civil 
Practice, any claim of laches, by failing to present it af¬ 
firmatively in any pleading or to give facts supporting it, 
and no elements thereof are shown. 

5. Appellees waived any claim of res judicata under 
the same rules, by failure to assert it affirmatively, if 


13 


present, and are wholly in default of responsive pleading, 
or timely motion. Presenting res judicata by untimely 
motion is of no avail, and no fact supports it. 

6. Section 648, Title V, U. S. C. A., contains an 
absolute command that appellant not be discharged for 
cause, while his record was of good efficiency and con¬ 
duct, the prescribed method being therein limited to the 
application of the elaborate efficiency procedures required 
by civil service rules and regulations as provided by that 
statute, which adequately protects the Government against 
retaining an unfit veteran, and gives him some rights, 
supplemented by the Veterans’ Preference Act of 1944. 

Conclusions. 

7. Appellant’s Motion for Summary Judgment should 
have been granted on the admitted facts, and default of ap¬ 
pellees, with appellees’ Motion to Dismiss denied, by the 
court below. 


ARGUMENT. 

1. As a matter of law, the acts of army officers 
were those of intruders and usurpers of authority, void 
ab initio , nullity of no effect, to suspend or discharge ap¬ 
pellant from his civil service position or pay due for per¬ 
formed services. 

(a) In Whiteside v. 17. S., 93 U. S. 247, 23 L. Ed. 882, 

the Supreme Court said, at page 257: “* * * Individuals 

as well as courts must take notice of the extent of au¬ 
thority conferred by law upon a person acting in an of¬ 
ficial capacity * * 

(b) 17. S. y. Foster and U. S. v. Buescher, 131 F. 
2d 3 (Cert, denied), hold: “* * * All persons dealing 



with public officers are bound to know that acts which 
are within the apparent, but in excess of actual, authority 
of officers will not bind the Government * * 

(c) In Continental Casualty Co. v. U. S., 113 F. 2d 
284, 39 F. Supp. 598 (Cert, denied), it was stated: “* * * 
Public officers are merely agents of the public, whose 
powers and authority are defined'and limited by law and 
any act without the scope of authority so defined does 
not bind the principal and all persons dealing with such 
agents are charged with knowledge of the extent of their 
authority * * *.” 

(d) N. L. R. B. v. Prettyjnan, 117 F. 2d 786, said: 
“* * * One of the purposes to be accomplished in the 
administration of every law is the maintenance of public 
confidence in the value of the measure * * 

(e) In VoL 14, Corpus Juris Secundum, p. 1156, 
“Civil Service” is defined thus: “This term includes 
all functions of the Government, except military functions.” 

(f) And Vol. 67, p. 107, Sec. 4 (b), under “Usurper 
or Intruder” states: “A usurper is not an officer at all or 
for any purpose” (Neal v. Parker , 139 S. W. 204, 200 Ark. 
10 ). 

(g) In Tweed’s Case , 83 U. S. 518, 16 Wall 518, 21 L. 
Ed. 389, the Supreme Court said: “* * * The acts of a 
mere intruder or usurper of an office, without any color¬ 
able title, are undoubtedly void both as to the individual 
and the public * * *.” 

(h) Recently, in Duncan v. Kahanarnoku, 386 U. S. 
615, 618, the Supreme Court held: “* * * The established 
principle of every free people is that the law alone shall 
govern and to it the military must always yield * * *. 
From time immemorial despots have used real and imagined 


threats to public welfare as an excuse for needlessly ab¬ 
rogating human rights. * * 

2. No argument appears necessary, nor citation, to 
establish that the complaint states a claim upon which re¬ 
lief can be granted. A glance at the facts shown in the 
recorded complaint should suffice. Clearly, Section 46a, 
Title V, U. S. C. A., prohibits appellees refusing appellant 
his pay due for services performed through September 
4, 1947, a claim in any and all events, upon which relief 
can be granted, directing that appellees perform their 
mandatory duty to pay for work performed and remit 
money earned. 

3. Definitely, the lower court had jurisdiction over the 
subject matter of the complaint, under the enactments 
shown under “Jurisdictional Statement” herein. 

(a) The lower court, in Snyder v. Buck , after a 
thorough analysis of the Administrative Procedures’ Act, 
said (75 F. Supp. 902), at page 908: “The * * * analysis 
irresistibly leads to the conclusion that every final agency 
action which is not in the realm of discretion, or in re¬ 
spect to which no statute precludes judicial review, and 
which adversely affects the legal rights of any person, 
is subject to judicial review under the Administrative 
Procedures’ Act. The form of review is any suitable 
or appropriate proceeding, unless an adequate remedy is 
otherwise provided by a special statute. A review may, 
for example, be had by an action for a declaratory judg¬ 
ment, by an action for a restraining, or mandatory in¬ 
junction * * * or some other fitting remedy. This result 
necessarily subjects to judicial review a large group of 
administrative actions which previously could not have 
been re-examined or set aside by the courts, * * * Con¬ 
sequently, this interpretation of the Act, which appears 


16 


to this Court to be inescapable, will not impede or in¬ 
terfere with the operations of the Government. On the 
other hand, it will extend the right of judicial review to 
all persons whose private rights are adversely affected 
by final agency action that is not discretionary in char¬ 
acter and in respect to which no statute bars judicial 
review * * *. In any event, it is clear that this is what 
the Congress intended to accomplish * * *.” 

(b) In Laden v. Crosson, No. 13263, U. S. D. C., East 
Dist., Phila, Pa. (1952), not appearing in the reporter 
system, that court held: “* * * The defendants raised 
the question of jurisdiction in their affidavit and brief, but 
it is apparent that the Court has jurisdiction under the 
Judicial Review provisions of the Administrative Proced¬ 
ures’ Act, 5 U. S. C. 1009 * * * ” 

(c) This Court in Garfield v. 17. S. ex rel. Turner, 
31 App. D. C. 332, 36 W. L. R. 410; and McKenzie v. Fisher, 
40 App. D. C. 74, 41 W. L. R. 197, held: “A court will 
restrain by injunction the performance of an unlawful 
act, or command by writ of mandamus the performance 
of a lawful act.” 

(d) In Alley v. Craig, 97 F. Supp. 576, it was held, 
page 578: “A review of findings and rulings in a proceed¬ 
ing to remove an employee within the purview of Section 
14 (Sec. 863, Title V, U. S. C. A.) comprehends considera¬ 
tion of not only the evidence of alleged misconduct but of 
all statutory formalities for his protection.” 

(e) The Supreme Court said, in Wilbur v. U. S., 281 
U. S. 206, 50 S. Ct. 320, 74 L. Ed. 809: “Where the duty 
in a particular situation is so plainly prescribed as to 
be free from doubt and equivalent to a positive command, 
it is regarded as being so far ministerial, that its perform¬ 
ance may be compelled by mandamus unless there be 
provision or implication to the contrary.” 


17 


4. Under the act of Congress enacting into law the 
Rules of Civil Procedure for the United States District 
Courts, as shown in Rules 7, 8 and 12, the appellees failed 
to serve or file any responsive pleading, were not granted 
nor allowed extension of time, and did not serve or file 
any motion within the specified time, or otherwise, con¬ 
taining any question of laches, were in default and waived 
all defense or objection, if any. 

(a) If this court, and only if, shall rule, that on 
these circumstances, laches can be considered, but spe¬ 
cifically retaining and not intending to waive the rights 
created by such waiver by appellees, the appellant shows 
further, relative to laches: 

(b) This court, in Riley v. Titus , 190 Fed. 656, held: 
“* * * The appellees urged on appeal that the claims of 
appellants are barred by laches. This defense however, is 
required to be made affirmatively in the District Court 
under Rule 8 (c), F. R. C. P., and Rule 12 (b) requires 
that such affirmative defense be made by a responsive 
pleading. The appellees, however, moved to dismiss, and 
this under the rules did not raise the question of laches; 
nor did the affidavits filed in the District Court affirma¬ 
tively raise that issue. When therefore the court granted 
summary judgment pursuant to the provisions of Rule 12 
(b) no issue of laches was presented by the pleadings 
or affidavit.” 

(c) The Supreme Court in So. Pac. Co. v. Bogert, 250 
U. S. 483, 63 L. Ed. 1099, held: “* * * Where complainant 
did not acquiesce in the situation, but maintained other 
suits, though mistaking his remedy * * * the essence of 
laches is not lapse of time, but is acquiescence or lack of 
diligence in seeking a remedy.” 

(d) Appellant’s claim for pay, related to the period 
December 27, 1944, to April 2, 1947, when he was restored 


18 


to duty, was allowed in 1948, not paid after such allow¬ 
ance, and no lack of diligence in seeking a remedy is 
shown, nor in fact shown affirmatively or in any manner 
by appellees, for they all well know laches is not avail¬ 
able on the record. Lack of any prejudice or detriment 
to appellees is obvious, and is not asserted by appellees. 
Only benefit, arose to appellees and the United States, 
from the refusal to pay after allowance, of the claim in 
1948, and detriment appears only to the appellant, as no 
interest could run until after judgment on the claim; as 
on April 2, 1945, appellant was restored to position and 
pay thereafter. 

(e) McCorrib v. Homemakers Handicraft Corp., 176 
F. 2d 633 (Cert, denied), held: “Laches and estoppel may 
not be relied upon to deprive the public of protection of a 
statute because of mistaken action or lack of action on 
the part of public officials.” 

(f) The lower court in Friedman v. Kellogg , (D. C., 
D. C.) 54 W. L. R. 129, held: “* * * so long as the ap¬ 
plicant does all the law requires him to do and within 
the time when the right or privilege claimed was open 
and available to him, a delay on the part of the authori¬ 
ties in disposing of the application ought not to operate 
to the prejudice of the applicant, to defeat his rights.” 

(g) The lower court in its Memorandum (Appel¬ 
lant’s App. 42) asserts appellant “has done nothing to 
effectively assert his rights for 8 years.” On the contrary, 
it appears appellant, did so effectively assert his rights, 
that his claim for the pay from December 27, 1944, to 
April 2, 1945, was allowed for payment in 1948 (Appel¬ 
lant’s App. 37-38) sometime after June 16, 1948. The 
only more effective he could have been would have been 
to obtain payment, which he still made efforts to get, 
up to date, but received only the weird passing of the buck 


19 


indicated in the quotations from Appellant’s App., 38-41, 
of communications to him from appellees. 

(h) Sections 71-71a, Title 31, U. S. C. A., shown 
under “Statutes, etc.,” provide 10 years for prosecution 
of appellant’s claims and demands, before the appellee, 
the Comptroller General’s office, before they would be 
barred. 

(i) This court held in Sis v. Boorman, 11 App. D. C. 

122, 25 W. L. K. 431: “* * * There is no room here for 

the application of laches. It would be absurd to hold 
that if a person has a term of 20 years under the statute 
within which to bring his action, he is to be regarded as 
guilty of laches unless he bring it within some shorter 
period. Nineteen years and five months are not the 
equivalent of 20 years either at common law or in equity.” 

(j) Again this court held in Wash. Loon & Trust Co, 
v. Darling, 21 App. D. C. 132, 31 W. L. R. 129: “There 
must be something extraordinary in the circumstances of 
a case to justify a court of equity in denying relief on 
the ground of laches when there would be no bar by the 
statute of limitations to a corresponding action at law.” 
(To the same effect are Pryor v. McIntyre, 7 App. D. C. 417, 
24 W. L. R. 49; Brown v. McIntyre, 7 App. D. C. 435, 24 
W. L. R. 54; Hayne v. McIntyre, 7 App. D. C. 449, 24 W. L. 
R. 59.) 

(k) In Elchibegoff v. 17. S., (106 Ct. Clms. 557 (541), 
561 (541), the Court of Claims denied a claim of laches 
in a veteran’s case, now pending, in these words: “* * * 
The district court dismissed the complaint * * * on the 
ground the plaintiff’s petition did not state a cause of ac¬ 
tion * * *. The defendant raised the question of laches. 
However * * * the plaintiff allowed no grass to grow un¬ 
der his feet * * *. He protested all over the lot. He 


20 


wrote the Civil Service Commission, he wrote the Bureau 
of Economic Warfare; he wrote the President; he insisted 
on reinstatement; he filed suit in the United States District 
Court and finally, after exhausting all other avenues of 
protecting his rights, he filed suit in the United States 
Court of Claims * * *. We hold that the civil service laws 
and regulations were not complied with until August 
24, 1943, and that plaintiff is entitled to recover his salary 
for * * * a total of $1,127.20 * * * ” 

(1) In Phillips v. Baker, (C. C. A. Cal., 1941) 121 F. 
2d 251 (Cert, denied 62 S. Ct. 301, 314 U. S. 688, 86 L. Ed. 
551), it was determined: “* * * Subdivision (h) of Rule 
12, F. R. C. P., was to be construed as intending to waive 
any defense permitted to be made, which was not raised by 
motion or answer and holding further that an omitted de¬ 
fense will be deemed to have been waived * * 

5. Appellees have defaulted by failing to serve or 
file responsive pleading or motion as required by Rules 
7-8, F. R. C. P., and with no answer, were not before the 
court below, nor here properly, on any question of res 
judicata, having waived it, upon which waiver appellant 
relies, and protected the record with proper objections be¬ 
low. 

If this honorable court construe the enactments of 
Congress shown in Rules 7, 8 and 12, F. R. C. P., after de¬ 
fault of responsive pleading, and absence of answer; that 
appellees regardless, may, outside of such enactments, be 
heard on the question of res judicata determined by the 
court below to be applicable to the appellant’s second claim 
for relief, thus determining adversely to the contention of 
appellant that appellees have waived any such question; in 
that event, and then only, the following is shown to the 
court, relative to res judicata. 


21 


(a) The court below in Stoddard v. Morrin, 8 F. R. D. 
376, held: “* * * Rule 12 of the Rules of Civil Procedure, 
28 U. S. C. A., provides that six classes of defenses may 
be made by motion. None of the first five of these in¬ 
volved the question here presented. The sixth ground 
upon which a motion may be heard is: ‘failure to state 
a claim upon which relief can be granted.’ Some courts 
have said that although nothing may appear on the face 
of the complaint which shows that the cause of action is 
barred by res judicata, that fact may be shown by affi¬ 
davit, and upon that being done, a motion to dismiss will 
lie. I do not agree with this view * * * the present rules 
in my opinion require that the defense of res judicata 
should be raised ‘in the responsive pleading.’ The motion 
to dismiss should be overruled.” 

(b) Love v. 17. S., 119 Ct. Clms. 486, 98 F. Supp. 779, 
did not litigate nor determine the question involved here, 
that the acts of an active duty army officer were void or 
not. It determined only: 

“* * * the procedural requirements have been 
complied with • * 

The Court of Claims made findings of fact contrary to 
that conclusion thus: 

“Special Findings of Fact * * *. 

2. By letter dated July 11, 1947, * * * notified 
plaintiff of his proposed discharge * * *. The notice 
of charges states as follows: 

(1) * * * y ou are hereby suspended without 
pay, effective 16 July 1947, for a period of five 
days * * *. 

(2) * * * you will be suspended for a period 
of thirty days prior to your discharge in accordance 
with Section 14 of the Veterans’ Preference Act. 

******* 






22 


4. On August 4, 1947, * * * notified plaintiff as 
follows: 

******* 

3. Effective close of business 5 August 1947 
you will be suspended for a period of thirty days 
* * *. You will be discharged * * * effective close 
of business 4 September 1947 * * 

The tenor of those purported notices is of action al¬ 
ready decided upon, not of proposed adverse action to sus¬ 
pend for 35 days and discharge, and are wholly devoid of 
at least 30 days’ advance notice in an active duty status, 
a procedural requirement of Section 863, Title V, U. S. C. 
A., reading: 

“No * * * eligible * * * shall be discharged, sus¬ 
pended for more than 30 days * * * and the person 
* * * shall have at least thirty days’ advance written 
notice * * 

The supplementing regulation reads: 

“Part 22, Section 22.2 (c) * * * Whether the 
employe is given thirty (30) days advance notice * * * 
or less * * * he shall be retained in an active duty 
status during such notice period * * 

It is a mathematical impossibility to discover any¬ 
thing in the Court of Claims’ findings of facts, that the 
employe was given at least 30 days’ advance notice, or that 
from the beginning (July 11, 1947) date, to the end (Sep¬ 
tember 4, 1937) date, a period of 56 days on the calendar, 
there was proposed retention in an active duty status, 
nor was it possible to be in such status by the very words 
of the notices for more than from July 11, 1947, to July 17, 
1947, which is six days on the calendar; from July 21,1947, 
to August 6, 1947, which is 11 days on the calendar, a total 
of 21 days in active duty status. In other words, defi- 


23 


nitely, the notices show in fact 35 days actual suspension 
without duty or pay and 21 days in active duty status, a 
total of 56 days. 

To deem, under any circumstances, the decision of the 
Court of Claims, even as to such erroneous conclusion they 
made to be res judicata , contrary to the facts they found, 
would merely perpetuate error and injustice, destroying 
the right to have at least thirty (30) days’ advance notice 
in an active duty status, provided by law for a war vet¬ 
eran. 

(c) In Love v. U. S., 104 F. Supp. 102, the Court of 
Claims did not litigate nor determine the question involved 
here, i. e., that the acts of active duty armed forces’ of¬ 
ficers, were void or not. It only made the same erroneous 
determination as before, in 119 Ct. Clms. 486, 98 F. Supp. 
779 (See also 104 F. Supp. 102). In case No. 50454, April 
8, 1952, the decision reads (Not in the reporter system): 

“Dated April 8,1952, * * * It does not appear that 
plaintiff has been restored to service prior to the filing 
of this petition * * *. It was finally adjudicated in 
the previous suit in this court—and the United States 
Supreme Court denied certiorari—that the discharge 
was not illegal and that plaintiff had no right to re¬ 
cover for salary for the period September 4, 1947, to 
September 19, 1947 (the remainder of the period cov¬ 
ered by Claim D here).* * * ” 

In 104 F. Supp. 102, the Court of Claims, dated No¬ 
vember 4, 1952, decided, only this in their words: 

“Dated November 4,1952, * * * Plaintiffs original 
suit based on alleged illegal suspension and improper 
demotion was decided adversely to plaintiff in the case 
of Love v. U. S., 119 Ct. Clms. 486. The only portion 
of Claim B not covered in the original opinion is the 
demotion in pay from July 13 to 16 and July 24 to 
August 5, 1947 * * *.” 



24 


The next above may appear confusing, but it is clear 
from it, that the Court of Claims rejected the theory 
of res judicata itself, that the “demotion” decided previ¬ 
ously, was within that sort of estoppel, by in the second 
suit No. 50,545, on November 4, 1952, reversing itself, in 
these words: 

“* * * Plaintiff’s motion is granted. He is entitled 
to recover from the defendant the sum of thirty dollars 
and ninety five cents ($30.95).” 

(d) In United States v. Jones, (Court of Claims) 69 
S. Ct. 787, 336 U. S. 641, 93 L. Ed. 938, rehearing denied; it 
is made clear, that the District Court, unlike the Court of 
Claims, is not confined to rendering money judgment 
against the United States, but has the power on finding 
an order invalid, to remand to the agency for further pro¬ 
ceedings, and it was so held in that case. 

(e) In Alley v. Craig, 97 F. Supp. 576, it was held 
“Page 578. * * * A review of findings and rulings in a 
proceeding to remove an employe within the purview of 
Section 14 (Sec. 863, Title V, U. S. C. A.) comprehends 
consideration of not only the evidence of alleged miscon¬ 
duct but of all statutory formalities for his protection 
* * *.” See also N. L. R. B. v. Hart Cotton Mills , (C. A. 
4, 1951) 190 F. 2d 964, and Dorsey v. Kingsland, 173 F. 2d 
405, 84 U. S. App. D. C. 626. 

(f) In Jones v. Germania Iron Co., 107 Fed. 597, 46 
C. C. A. 476 (Appeal dismissed, 25 S. Ct. 786, 159 U. S. 
638, 49 L. Ed. 356), it was held res judicata would not ap¬ 
ply 

“* * * as to matters which might have been, but 
were not litigated * * *.” 

(g) The highest court held, in Emich Mtrs. Corp. v. 
G. M. C., 71 S. Ct. 408, 414, 340 U. S. 558, 95 L. Ed. 594, re- 


25 


hearing denied, 71 S. a. 610, 341 U. S. 901, 95 L. Ed. 648, 
“* * * Such estoppel extends only to questions ‘distinctly 
put in issue and determined.’ ” Frank, v. Mangum, 237 U. S. 
334, 35 S. Ct. 590; U. S. v. Meyerson, (D. C. S. D. N. Y.) 
24 F. 2d 855, 856 * * * and further held “* * * Estoppel 
in favor of Government extends only to questions directly 
determined in prior proceeding * * in Cromwell v. 
County of Soc, 94 U. S. 353, “* * * Where the second ac¬ 
tion * * * is upon a different claim or demand, the judg¬ 
ment in the prior action operates as an estoppel only as 
to those matters, in issue or points controverted, upon the 
determination of which the finding or verdict was ren¬ 
dered * * *. There is nothing in this language applied 
to the facts, which gives support to the doctrine that, 
whenever in one action a party might have brought for¬ 
ward a particular ground of recovery or defense, and neg¬ 
lected to do so, he is, in a subsequent suit between the 
same parties, upon a different cause of action, precluded 
from availing himself of such ground.” (Gilman v. Rives, 
10 Pet. 298; Richardson v. Barton, 24 How. 188; Aurora 
City v. West, 7 Wall 90) * * *; and in United States v. 
Moser, 266 U. S. 242, proscribed. “* * * Where, for ex¬ 
ample, a court in deciding a case, has enunciated a rule 
of law, the parties in a subsequent action, upon a different 
demand, are not estopped from insisting the law is other¬ 
wise merely because the parties are the same in both cases, 
178 U. S. 1, 45 * * * ” 

(h) This court held in Cummings v. Baker , 16 App. 
D. C. 1, 28 W. L. R. 131, “* * * The estoppel of a former 
adjudication cannot be made to include every matter of 
fact and law, that might have been determined under 
some contingency that did not arise, but only what must 
have been decided as expressly at issue and also that which 
must either have been assumed expressly or by implication, 






26 


or proved, in order to warrant the judgment or decree 
rendered.” 

(i) Section 1009 (e), Title V, U. S. C. A., the Judicial 
Review provision of the Administrative Procedures’ Act, 
expresses the positive intent of Congress, directing the 
courts, to review all relevant questions of law, interpret 
it, the meaning of agency action, whether supported by 
substantial evidence, correct action, set aside wrongful ac¬ 
tion; and in making those determinations, requires the 
court to review the whole record, or parts thereof cited 
by any party. Parts of the records of the Civil Service 
Commission, and the agency, considered pertinent and ma¬ 
terial, this party appellant, requests this reviewing court, 
to take judicial notice, and are cited, set forth therefrom, 
indicated as follows: 

(Charge I. Record showing falsity of it.) 

In Love v. U. S., 98 F. Supp. 771, is shown the charges: 

“Charge I. Making false accusation against the 
Army Audit Agency, in June, 1937. 

Charge II. Willful insubordination, consisting of 
preparing a Memo Report on a war contract termina¬ 
tion claim for the signature of an employee cost an¬ 
alyst, Chief of Branch, at the employee’s field station 
contrary to published policies and procedures and di¬ 
rect telephonic orders * * * evidenced by letter dated 
11 June 1947 * * 

No. I Charge. 

(The Army Audit Agency did not exist in 1937. The 
charge falls flat on its face, as not specific and in detail, 
as required by the statute, and does not allege what was 
claimed to be false in any respect. Hereafter from the 
records is shown that this charge itself was intentionally 


27 


false, for the record of the agency of it, referred to a let¬ 
ter in 1947, which obviously \yas true and intended to 
keep the agency out of falling into disrepute.) 

No. II Charge. 

(This charge falls flat on its face, as not within any¬ 
thing that would improve the efficiency of the service, not 
specific and in detail as required by the statute and does 
not allege what published policies or procedures or tele¬ 
phonic orders it was contrary to. Hereafter from the rec¬ 
ords is shown that this charge was sham, and that on the 
contrary, the writing of the report was part of the em¬ 
ployee’s mandatory duty under specific policies and pro¬ 
cedures, and that any telephonic order came after the 
date alleged, not before, and that telephonic conversation 
was not contrary to what the employe did, in preparing the 
report for another cost analyst to sign, as ordered by 
proper authority for him to do.) 


THE RECORDS. 

To: Army Audit Agency, Phila. Pa. 

12 Feb. 1947 

Mr. Alexander made a field audit * * *. As a result 
Mr. Harold R. Love was sent to make a reaudit. * * * The 
case was turned over to the U. S. Attorney. * * * Mr. 
Alexander was suspended for 60 days. This case has been 
reported as a direct violation with collusion of Sec. 19-C 
(Sec. 119, Title 41, U. S. C.) of the Contract Settlement 
Act and available information pointed to the possible in¬ 
volvement of Mr. Alexander in the matter. * * * it was 
suggested that Mr. Alexander be used in such a manner 
that the files and records under review would not be 
available to him. 










28 


It is desired to again request action on the rec¬ 
ommended transfer of Mr. Alexander. We are now in 
an office together and only this morning, Mr. Alexander 
started an argument during which he 'called Mr. Love a 
liar and threatened to have him put in jail. It is extremely 
difficult to maintain a satisfactory organization with such 
conditions existing. 

s/ Albert Hanes, 

Chief Jeffersonville Sub- 
Office.” 


EXHIBIT A. 

“VIA AIRMAIL ARMY SERVICE FORCES 
Jeffersonville, Indiana. 

QMDJ P-CA Subject: Maurice G. Alexander. 

To: Quartermaster General, 

Washington, D. C. 

As requested in your telephone conversation with Mr. 
J. S. Palmore, Chief Legal Branch this Depot, since release 
from suspension Mr. Alexander has been enaged in a study 
of the accounting system. Mr. Alexander would possibly 
have access to files pertaining to contract terminations on 
which he had previously worked as auditing accountant 
through their assignment to him by AAA. It would seem 
that under those circumstances it would be preferable to 
assign him to some other area. 

s/ Harlan L. Mumma, 

Brig. Gen., QMC Com¬ 
manding.” 


29 


DMin 


“WAR DEPARTMENT, Jeffersonville, 

Q. M. Depot, Indiana 

QMDJ P 11 February 1947 

Subject: Maurice G. Alexander, 

ATTEN: Albert Hanes, Chief, 

Army Audit Agency 
Jeffersonville, Ind. 

1. Reference is made to your request for information 
to be used in the preparation of reply to Army Audit 
Agency letter FINTB-I, dated Feb. 5, 1947. 

2. In the matter of Mr. Alexander being assigned 
out of your office, it will be recalled that at the direction 
of higher authority Mr. Alexander was suspended for ap¬ 
proximately 60 days. 

3. This case has been reported to higher authority 
as a suspected violation of Section 19-C of the Contract 
Settlement Act and available information pointed to the 
possible involvement of Mr. Alexander in the matter. 
It was suggested to this Depot that Mr. Alexander be used 
in such a manner that the files and records under review 
not be available to him. 

4. A letter was prepared from this Depot under date 
of 3 January 1947 to the Office of the Quartermaster 
General outlining Mr. Alexander’s current activities and 
recommending that should an Army Audit Agency Field 
Office, be established at this installation, steps be taken 
to secure this auditor’s assignment to some other office. 

5. This entire matter was discussed in detail with 
Mr. McCormick, representative of the Army Audit Agency 
during his recent inspection at this Depot. 

For the Commanding General 
s/ Raymond L. Springer, 

Major, QMC, Assistant.” 






30 


The letter referred to in Charge 1, dated June 11, 
1937 (sic.) reads: 

“CONFIDENTIAL June 11, 1947. 

Civilian Personnel Officer 
and the Administrative Officer, 

Finance Office, U. S. Army, 

238 East Wyoming Avenue, 

Philadelphia 20, Pennsylvania. 

In re: Charges against Employee 
Maurice G. Alexander, 

CAF-12, Cost Analyst. 

1. The following charges are presented against 
M. G. Alexander for suspension and discharge to pro¬ 
mote the efficiency of the service: 

(a) He has entered into collusion with a con¬ 
tractor for the purpose of raising a claim against the 
United States for a larger sum than they are entitled 
to have. 

(b) He has interfered with this writer in the 
performance of his official duties to the extent of 
preventing a proper audit being accomplished of a 
claim against the United States. 

(c) He has made illegal and improper threats to, 
and in the presence of, employees of this sub-office and 
elsewhere to do a government employee bodily harm 
and has made threats to murder someone. 

******* 

(e) Falsely called a fellow employee in this sub¬ 
office a liar and made illegal threats to put such fellow 
employee in jail, sue him civilly based on a Restricted 
Document, that was given him improperly by the Mil¬ 
itary, and creating a general disturbance in the course 
of his employment, on two separate occasions entering 
into violent and abusive argumentation with his super¬ 
visor and disturbing the routine of a government of¬ 
fice. 


31 


2. Proof of these charges is readily available, and 
most of the facts have been in the possession of the 
proper authorities at this Depot, the U. S. Attorney at 
Indianapolis and the Army Audit Agency for quite 
some time. There has been apparent cooperation to 
the extent of encouraging this person, Mr. Alexander’s 
derelictions, and to the extent of disgracing the service 
and bringing it into disrepute. This particularly in 
view of the fact the Army Audit Agency has seen fit 
to continue Mr. Alexander’s services against the spe¬ 
cific order or instruction of a Brigadier General to 
them, not to permit him at this installation over which 
the General has Military control, and had, at the time 
he issued his directive, order or request to the Army 
Audit Agency, or those forming such agency, at Wash¬ 
ington, D. C. 

******* 

4. Mr. Alexander has been permitted access to 
files that the General has specifically stated he should 
not have access to, and such access was by the af¬ 
firmative acts of Mr. Albert Hanes, the former Chief 
of this sub-office, in a case of fraud, involving a re¬ 
port of Mr. Alexander as cost analyst * * * which was 
restricted on its face, as to his examination, which he 
alleges he is using as he has in the past threatened. 

******* 

7. Definite request is made, that as is usual in 
such cases * * * involving a restricted report of the 
War Department, the furnishing of legal counsel by 
the properly authorized government authority, be 
promptly done, in order to protect the government 
against improper further disclosure of the restricted 
report and documents, furnished Mr. Alexander * * *. 

s/ Harold R. Love, Cost Analyst 
Sub-office, JQMD, Indiana, 
Army Audit Agency.” 

(Submitted under Grievance Procedures.) 



32 


(CHARGE II Record showing nothing was irregular, 
except the cover up of fraud by defendants.) 

“Circular No. 351, War Department, Wash¬ 
ington, D. C., 28 November 1946: 

******* 

2. The investigation and prompt reporting of 
suspected fraud is of extreme importance and this 
must necessarily be accomplished primarily by the 
personnel in the field * * *. Each person who assumes 
duties in connection with contract settlement should 
be fully informed * * * it is the duty of such officer 
or employee to prepare immediately and forward a 
statement of the pertinent facts in connection with 
such believed fraud. * * 

(See also Section 4, Title 18, U. S. Code.) 


“REPORT OF TELEPHONE CONVERSATION D. A. 
RIPPETOR CONTRACT TERMINATION No. O. L 
C-11769-5 FROM PHILA. PA. TO JEFFERSONVILLE, 
INDIANA at 2:10 to 2:15 P. M. JUNE 18, 1947 

Mr. R. V. Rester, Resident Auditor, ’phoned to 
R. W. Crum, Chief, sub-office, AAA asking for writer, 
and instructed me to contact Mr. Parker, Chief, CJP. 
A.B., JMD and obtain letter requesting work per¬ 
formance of work completed June 15, 1947, and for¬ 
ward copy of work to Phila. 


s/ Harold R. Love” 


33: 


“WAR DEPARTMENT, JQMD, Indiana 
PO-P 13 August 1947 

Subject: D. A. Rippetoe Contract 
O. I. C-11769-5 

To: Army Audit Agency 

Jeffersonville, Ind. 

1. Reference is made to your letter * * * whereby 
you requested the files and papers relative to the 
D. A. Rippetoe contract, O. I. C-11769-5. This work 
was requested of you orally as an established sched¬ 
ule of work performance excluded from the terms of 
War Department Circular 61, dated March 5, 1947, 
therefore it was not considered necessary to submit a 
written request. This request was considered to be 
authorized under Army Audit Agency, Phila. Pa. Re¬ 
gional Office Mimeograph, dated February 18, 1947 
addressed to the Chief of the local sub-office; it did 
not seem necessary to make this request in writing. 

2. * * * Since you (Harold R. Love) were fairly 
•familiar with the subject contract, it was determined 
to the Government’s interest to request you to perform 
the work. To have requested this work through the 
Phila. office would have delayed the matter to the 
detriment of the Government. Another reason for the 
making of this oral request of you was the personnel 
of this Section had been cut to such a minimum that 
personnel was not available to perform a rush audit. 

3. This matter was explained thoroly to Mr. R. 
V. Rester, Chief of the Industrial Audit Section at 
Phila. per telephone conversation by the writer, and 
at that time Mr. Rester stated, 




34 


and the writer agreed that the whole matter should 
be dismissed. Therefore since it was agreed by 
your Chief of the Philadelphia Regional Office 
to dismiss the whole matter, this Section refuses 
to forward the files as requested. 

FOR THE ACTING COMMANDING 
OFFICER: 

s/ Louis E. Parker, 

Cost Analyst, 

Assistant” 


(The D. A* Rippetoe Contract Termination 
claim was sued on in court for fraud and falsity 
to recover it, wherein the U. S. Circuit Court of 
Appeals for the Fourth Circuit, in U. S. v. D. A. 
Rippetoe, 178 F. 2d 735, had this to say; in ob¬ 
servation thereof: 

“Plaintiff alleged not only that the claim 
was false, but also that there was corruption 
on the part of government officials in dealing 
with it * * * Some of the worst frauds upon 
the government have been those in which 
officials have participated * * *.”) 


(6) The Act contained in Section 648, Title V, U. S. 
C. A., referred to under paragraph No. 6, in Summary of 
Argument, page 13, precludes any other construction than 
as there indicated, for otherwise, the statute’s language 
would have no meaning, its commanding clarity would be 
destroyed; and the procedural protection be of no avail 
to a war veteran. Section 867 of Title V, U. S. C. A., 
keeps it in effect for appellant’s protection, as indicated in 
Hilton v. Svllivan, 68 S. Ct. 1026-7, which said “It was 


35 


an absolute command that no governmental department 
should discharge * * * any honorably discharged veteran 
government employe with a rating of ‘good’ * * *. The 
purpose of that Act’s sponsors and of Congress in passing it 
appears to have been * * * to broaden rather than narrow 
the preference. * * and recently in Laden v. Crosson, 
108 F. Supp. 242 (1952), it was said: “* * * Section 867 
provides that ‘* * * this chapter shall not be construed to 
take away from any preference eligible any rights hereto¬ 
fore granted to, or possessed by, him under any existing 
law * * *” and quoted with approval Hilton v. Sullivan, 
(supra). With certainty, this appellant had the right in 
Section 576, Title V, U. S. C. A., requiring that the mili¬ 
tary refrain from usurping civil functions of an executive 
department, which cannot be construed to be taken away. 

Standing of Third Claim for Belief. 

This claim shows appellant, a war veteran and former 
Internal Revenue Agent, with disability preference, estab¬ 
lished by competitive civil service examination, his eligi¬ 
bility and had his name placed on the register as qualified 
for certification, appointment, reinstatement or reemploy¬ 
ment thereto, in 1951. Thereafter appellees removed his 
name from all registers and debarred him for future ap¬ 
pointment consideration, and destroyed his eligibility, with¬ 
out reason, and after demand for reinstatement or re¬ 
employment or appointment, refused to comply with the 
procedural requirements of Section 863, Title V, U. S. C. A., 
and appellant asked for a declaration of his rights and 
appropriate relief. 

The sections of the Veterans’ Preference Act of 1944 
standing alone, appear sufficient to sustain this claim for 
relief. 



36 


Two cases of this court appear to have bearing on the 
standing of this claim. 

In Hurley v. Crawley, 60 App. D. C. 245, 50 F. 2d 
1010, it was said: “This is an appeal by the Secretary of 
War and the United States Civil Service Commission, 
from an order of the Supreme Court of the District of 
Columbia, granting a writ of mandamus, commanding the 
petitioner there who is appellee here, be given the pref¬ 
erential status provided by the Civil Service Rule VI (as 
amended by Ex. Order of March 3, 1939) * * * Can the 
military demand and obtain a wide and liberal construc¬ 
tion of penal provisions incidentally necessary to the ex¬ 
ecution of a great purpose and at the same time a narrow 
and exclusive construction of remedial provisions created 
by Congress and the President in their mercy? We think 
not. And furthermore it is conceded that after the war, 
this petitioner was held to be entitled through the Vet¬ 
erans’ Bureau to both vocational training and disability 
compensation, while it is denied that he is entitled to a 
place on the veterans’ preferential list for employment. 
* * * And this military preference to civil employment 
goes to appointment only * * * For an appointment from 
the preferred list is always subject to removal for in¬ 
efficiency or other cause * * * the efficiency of the civil 
service is not endangered by the system * * * Affirmed.” 

In United States ex rel. Rodiquez v. Bowyer, 25 App. 
D. C. 121,23 W. L. R. 164, it was determined: “* * * Under 
Ride V of the civil service rules, promulgated by the Presi¬ 
dent on April 15, 1903, a native of Porto Rico owing alle¬ 
giance to the United States and possessing the necessary 
qualifications required by the remaining regulations, is 
entitled to registration by the Board of labor employment of 
the United States Navy Yard in this city and mandamus 
will lie to compel said board to grant his application for 
registration * * 


37 


The modem statute, Section 863, Title V, U. S. C. A., 
provides that no preference “eligible” who has completed 
a probationary or trial period in the civil service shall be 
“debarred” for future appointment, except for such cause 
as will promote the efficiency of the service, with specific 
reasons, required in detail, advance notice, opportunity to 
answer, defend, furnish affidavits and have personal ap¬ 
pearance and hearing; none of those procedural require¬ 
ments being shown in the case of appellant. Section 868, 
Title V, U. S. C. A., makes it the duty of the Civil Service 
Commission in all cases under the classified service, to 
make and enforce appropriate rules and regulations to carry 
into full effect the provisions, intent and purpose of that 
statute, and that any recommendations of the Commission, 
on the basis of an appeal by any preference eligible or 
former employe shall be complied with. The Commission 
has no authority to abrogate that act of Congress and Sec¬ 
tion 851 of it requires it to give preference in certification, 

I 

in appointment, reinstatement and in reemployment, first 
to the class of citizens which includes appellant. The stat¬ 
ute, in question, with great clarity shows that was its in¬ 
tent and purpose, to protect war veterans’ rights granted 
by Congress. Nowhere appears any implication that the 
Civil Service Commission should forget, ignore, amend, or 
modify it 

The court below in granting, erroneously appellant 
submits, the appellees’ motion to dismiss, in its opinion 
(Appellant’s App. 42-43), stated “plaintiff has no standing 
to maintain such an action.” Citing two cases, which do 
not appear to sustain such opinion. 

Such proscription by the court amounts to penalizing 
appellant, to deny him his civil right to employment which 
no criminal court could do without trial or hearing and 
results in inability to obtain a livelihood for himself and 



38 


family and places an unjustified odium over his head, 
in a manner foreign to the American concept of justice. 

Appellant shows he has requested reinstatement, ap¬ 
pointment and reemployment pursuant to Section 864, Title 
V, U. S. C. A., and a declaration of his rights, refused him 
by appellees, which can be enforced by way of mandamus 
or injunction, having exhausted all other remedies. 

The Supreme Court in Wilbur v. U. S., 281 U. S. 206, 
50 S. Ct. 320, 74 L. Ed. 808, said: “* * * Where the duty 
in a particular situation is so plainly prescribed as to be 
free from doubt and equivalent to a positive command, it 
is regarded as being so far ministerial, that its performance 
may be compelled by mandamus, unless there be provision 
or implication to the contrary.” 

The court in Roberts v. U. S., 176 U. S. 221, 20 S. Ct. 
376, 379, 44 L. Ed. 443, said “* * * If the law direct him to 
perform an act in regard to which no discretion is com¬ 
mitted to him, and which upon facts existing he is bound 
to perform, then that act is ministerial, although depend¬ 
ing upon a statute which requires in some degree a con¬ 
struction of its language by the officer. Unless this be so, 
the value of this writ (mandamus) is very greatly im¬ 
paired * * 


IN CONCLUSION. 

It appears that appellant’s Motion for Summary Judg¬ 
ment should have been granted, and appellees’ Motion to 
Dismiss stricken. Appellant asks determination of all 
points presented, if the court please. 

Respectfully, 

Harold R. Love, pro se. 
Appellant. 


INDEX 


Separate Appendix. 

Page 

Jurisdiction— 

D. C. Code, 1940 Ed., Secs. 11-306 and 11-315- a 

D. C. Code, 1951 Ed., Secs. 11-305 and 11-306- a 

Title V, Sec. 1009 (e), U. S. C. A-a 

Chap. SI, p. 3, Civil Service Personnel Manual- b 

Title 28, Secs. 1291-1292, 1294 _ b 

Constitutional Amendments_ b-c 

Generally— 

Title X, Section 576 - c 

Title X, Section 15- c 

Title V, U. S. C_ A.— 

Sec. 46a_:_I- c-d 

Sec. 856 _ d 

Sec. 863 _ d-e 

Sec. 864 - e 

Sec. 868 _ e-f 

Sec. 862 _ f 

Sec. 867 _ f 

Sec. 648 _ f 

Title 31, U. S. C. A.— 

Sec. 71 _ f 

Sec. 71a_ f-g 



n 


Index 


Page 

Regs. & Rules Civil Service Comm.— 

Sec. 2 22 (a) - g 

Sec. 22.2 (b)_ g 

Sec. 22.2 (c) _g-h 

Sec. 9.102 (a) (1)_ h 

Chap. SI— 

Page 12.01_ h 

Page 13_ h 

Page 14_ h-i 

Page 15_ i 

Page 17_ i 

Page 21_ i 

Page 22_ i-j 

Page 35_ j 

Federal Rules of Civil Procedure— 

Rules 7 (a), 8 <c) and 12 (a) (b) and (h) _ j 



Appendix 


a 


SEPARATE APPENDIX. 

Appellant’s Brief. . . 

Statutes, Regulations and Rules Involved. 

Jurisdiction. 

District of Columbia Code, 1940 Edition, Section 11- 
306 “Said court (except as otherwise provided in this 
Title) shall have cognizance of * * * all cases in law and 
equity between parties both or either of which shall be 
resident or be found within said district * * 

Section 11-315 “Writs—The said district court of the 
United States for the District of Columbia may in its ap¬ 
propriate special terms issue writs of * * * mandamus * * * 
injunction or in common law and equity practice that may 
be necessary to the exercise of its jurisdiction * * 

(See also Secs. 11-305 and 11-306, 1951 Edition.) 

Title V, Section 1009 (e), U. S. C. A. 

“So far as necessary to decision and where presented, 
the reviewing court shall decide-all relevant questions 
of law, interpret constitutional and statutory provisions, 
and determine the meaning or applicability of the terms 
of any agency action. It shall (A) compel agency action 
unlawfully withheld or unreasonably delayed; and (B) hold 
unlawful and set aside agency action, findings, and con¬ 
clusions found to be (1) arbitrary, capricious, an abuse 
of discretion, or otherwise not in accordance with law; 
(2) contrary to constitutional right, power, privilege, or 
immunity; (3) in excess of statutory right; (4) without 
observance of procedure required by law; * * * or (6) un¬ 
warranted by the facts to the extent that the facts are sub- 



b Appendix 

ject to trial de novo by the reviewing court In making the 
foregoing determinations the court shall review the whole 
record or such portions thereof as may be cited by any 
party and due account shall be taken of the rule of prej¬ 
udicial error. June 11, 1946, c. 324, Sec. 10, 69 Stat. 243.” 

Chapter SI, page 3, Civil Service Personnel Manual. 
“The courts may restrain or review the exercise of dis¬ 
cretion of the removing power, where violation of stat¬ 
utory restriction is involved.” 

Title 28, U. S. C. A. 

Section 1291 “The courts of appeals shall have juris¬ 
diction of appeals from all final decisions of the district 
courts of the United States, * * * except where a direct 
review may be had in the Supreme Court.” 

Section 1292 “The courts of appeals shall have juris¬ 
diction of appeals from: 

(1) Interlocutory orders of the district courts of the 
United States or of the judges thereof * * * refusing or 
dissolving injunctions * * * except where a direct review 
may be had in the supreme Court; * * *.” 

Section 1294 “Appeals from reviewable decisions of 
the district * * * courts shall be taken to the courts of 
appeals as follows: 

(1) From a district court of the United States to 
the court of appeals for the circuit embracing the dis¬ 
trict * * *.” 

Constitutional Amendments 

Article IV “The right of the people to be secure in 
their persons, houses, papers and effects against unreason¬ 
able searches and seizures, shall not be violated, and no 


Appendix 


c 


warrants shall issue but upon probable cause, supported 
by oath or affirmation and particularly describing the 
place to be searched, and the persons or things to be 
seized.” 

Article V “No person shall * * * be deprived of * * * 
liberty, or property without due process of law; nor shall 
private property be taken for public use without just 
compensation.” 

Article XIV “* * * No state shall make or enforce 
any law which shall abridge the privileges or immuni¬ 
ties of citizens of the United States; nor shall any state 
deprive any person of life, liberty or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.” 


Applicable Generally 

Title X, ARMY, Section 576 (R. S. 1222), U. S. C. A., 
“No officer of the Army on the active list shall hold any 
civil office, whether by election or appointment, and every 
such officer, who accepts or exercises the functions of a 
civil office shall thereby cease to be an officer of the 
Army and his commission shall be thereby vacated.” 

Title X, ARMY, Section 15, U. S. C. A. “It shall not 
be lawful to employ any part of the army of the United 
States as a posse corrutatus, or otherwise, for the purpose 
of executing the law, except in such cases and under 
such circumstances as such employment of such forces 
may be expressly authorized by an Act of Congress * • 

Title V, U. S. C. A. 

Section 46 a “From and after February 24, 1931, there 
shall be no withholding or confiscation of the earned pay, 


d 


Appendix 


salary or emolument of any civil employee of the United 
States removed for cause * * * (February 24, 1931, c. 287, 
46 Stat. 1415).” 

Section 851 “In certification for appointment, in ap¬ 
pointment, in reinstatement, in reemployment * * * in 
civilian positions in all establishments * * * preference 
shall be given to (1) those ex-service men and women who 
have served on active duty in any branch of the armed 
forces of the United States and have been separated there¬ 
from under honorable conditions and have established the 
present existence of a service-connected disability or who 
are receiving compensation, disability retirement benefits, 
or pension * * 

Section 856 “* * * the names of all qualified prefer¬ 
ence eligibles, entitled to ten points in addition to their 
earned ratings shall be placed at the top of the appropriate 
civil-service register, or employment list * * * June 27, 
1944, c. 287, Sec. 7, 58 Stat. 389.” 

Section 863 “No permanent * * * preference eligible, 
who has completed a probationary or trial period employed 
in the civil service, or in any establishment * * * shall be 
discharged, suspended for more than thirty days, fur¬ 
loughed without pay * * * or debarred for future appoint¬ 
ment except for such cause as will promote the efficiency 
of the service and for reasons given in writing, and the 
person * * * shall have at least thirty days’ advance writ¬ 
ten notice * * * stating any and all reasons, specifically 
and in detail, for any such proposed action: such prefer¬ 
ence eligible shall be allowed a reasonable time for answer¬ 
ing the same personally and in writing, and for furnishing 
affidavits in support of such answer, and have the right 
of appeal to the Civil Service Commission for an adverse 
decision of the administrative officer so acting * * • Pro¬ 
vided, that such preference eligible shall have the right 


Appendix 


e 


to make a personal appearance in accordance with such 
reasonable rules and regulations as may be issued by the 
Civil Service Commission * * * the Civil Service Commis¬ 
sion shall submit its findings and recommendations to the 
proper administrative officer and shall send copies of the 
same to the appellant * * * and it shall be mandatory for 
such administrative officer to take such corrective action 
as the Commission finally recommends * * *. June 27,1944, 
c. 287, Sec. 14, 58 Stat. 390, amended Aug. 4, 1947, c. 447, 
61 Stat 723; 1949 Reorg. Plan No. 5, eff. Aug. 19, 1949, 14 
F. R. 5227, 63 Stat. 1067.” 

Section 864 “Any preference eligible who has been 
furloughed, or separated without delinquency or miscon¬ 
duct, upon request, shall have his name placed on 
all appropriate civil service registers and/or on all 
employment lists, for every position for which his qual¬ 
ifications have been established, as maintained by the 
Civil Service Commission, or as shall be maintained by 
any agency * * * No appointment shall be made from an 
examination register of eligibles, except of ten-point pref¬ 
erence eligibles, when there are three or more names of 
preference eligibles on any appropriate reemployment list 
for the position to be filled. June 27,1944, c. 287, Sec. 15,58 
Stat. 391, amended 1949 Reorg. Plan No. 5, eff. Aug. 19, 
1949, 14 F. R. 5227, 63 Stat. 1067.” 

Section 868 “It shall be the authority and duty of the 
Civil Service Commission in all cases under the classified 
service to make and enforce appropriate rules and regula¬ 
tions to carry into full effect the provisions, intent, and 
purpose of this chapter and such Executive Orders as may 
be issued pursuant thereto and in furtherance thereof; 
Provided, That any recommendations by the Civil Service 
Commission, submitted to any Federal Agency, on the basis 
of an appeal of any preference eligible, employee or for- 




f 


Appendix 


mer employee, shall be complied with by such agency. 
June 27, 1944, c. 287, Sec. 19, 58 Stat. 391, amended June 
22, 1948, c. 604, 62 Stat. 1067, 1949 Reorg. Plan No. 5, eff. 
Aug. 19, 1949, 14 F. R. 5227, 63 Stat. 1067.” 

Section 862 “Any preference eligible who has * * * 
been dismissed or furloughed may, at the request of any 
appointing officer, be certified for, and appointed to, any 
position for which he may be eligible in the civil service 
* * * June 27, 1944, c. 287, Sec. 13, 58 Stat. 390.” 

Section 867 * * * saving clause. “All Acts and parts 
of Acts inconsistent with the provisions hereof are hereby 
modified to conform herewith, and this chapter shall not 
be construed to take away from any preference eligible any 
rights heretofore granted to, or possessed by, him under 
any existing law, Executive order, civil service rule or reg¬ 
ulation, or any department of the Government or officer 
thereof. June 27, 1944, c. 287, Sec. 18, 58 Stat. 391.” 

Section 648 “* * * In the event of reductions being made 
in the force in any of the executive departments no hon¬ 
orably discharged soldier * * * whose record in said de¬ 
partment is rated good shall be discharged or dropped or 
reduced in rank or salary * * * (Aug. 23, 1912, c. 350, Sec. 
4, 37 Stat. 413; Feb. 28, 1916, c. 37, Sec. 1, 39 Stat. 15.)” 

Title 31, U. S. C. A. 

Section 71 “All claims and demands whatever by the 
Government of the United States or against it, and all ac¬ 
counts whatever in which the Government of the United 
States is concerned, either as debtor or creditor, shall be 
settled and adjusted in the General Accounting Office. (R. 
S., Sec. 236; June 10, 1921, c. 18, Sec. 305, 42 Stat. 24)” 

Section 71 a “Every claim or demand * * * against the 
United States cognizable by the General Accounting Of- 


Appendix 


g 


fice under Sections 71 and 236 of this title shall be forever 
barred unless such claim bearing the signature and ad¬ 
dress of the claimant * * * shall be received in said office 
within ten full years after the date such claim first ac¬ 
crued * * * Oct. 9, 1940, c. 788, Secs. 1, 2, 54 Stat. 1061.” 

Regulations and Rules—Civil Service 
Commission Personnel Manual 

Section 22.2(a). “No employee covered by the reg¬ 
ulations in this part shall be discharged, suspended for 
more than thirty (30) days, * * * or debarred for future 
appointment, except for such cause as will promote the 
efficiency of the service and for reasons given in writ¬ 
ing, and the employee whose discharge, suspension for 
more than thirty (30) days, * * * is sought shall have at 
least thirty (30) days advance notice stating any and all 
reasons, specifically and in detail, for any such proposed 
action. The advance notice which is required when a 
proposed action is sought by an employing agency shall 
be submitted to the employee at least thirty (30) days 
before the effective day of such proposed action * * * 

(b) A reasonable time shall be allowed employees 
for answering personally and in writing, charges, and noti¬ 
fication of proposed adverse actions, and for furnishing 
affidavits in support of such answer, and the reasonable 
time required shall depend on all the facts and circum¬ 
stances of each case, and be sufficient in all cases to 
afford the employee ample opportunity to prepare an¬ 
swers and secure affidavits. 

(c) Whether the employee is given thirty (30) days* 
notice under paragraph (a) of this section, or less than 
thirty (30) days* notice (under exception) he shall be 
retained in an active duty status during such notice period 
* * *. No suspension during such notice period can be 




h Appendix 

effective except as provided in Section 9.102 (a) (1) of this 
Chapter * * 

Section 9.102 (a) (1) “No employee, veteran or non- 
veteran, shall be * * * suspended except for such cause 
as will promote the efficiency of the service and for rea¬ 
sons given in writing * * *. This notice shall set forth 
specifically and in detail, the charges preferred against 
him. The employee shall be allowed a reasonable time for 
filing a written answer to such charges and furnishing af¬ 
fidavits in support of his answer * * *. If the agency de¬ 
termines that * * * action is warranted, the employee shall 
be notified in the decision of the reasons for the action 
taken and its effective date. * * *” 

Chapter SI 

Page 12.01. “* * * The procedural requirements of 
Section 14 as to notice of a proposed adverse action, estab¬ 
lished fixed rights and are mandatory and there is no 
provision in the section as to waiver * * 

Page 13. “* * * The notice must state any and all 
reasons for the proposed action in every instance * * *. 

During the 30-day period, the employee shall continue 
in an active duty status * * *. The adverse action may not 
be made effective for at least 30 days after the employe 
receives the notice of proposed adverse action * * 

Page 14. “* * * A decision adverse to the employe 
must be based only on the reasons set forth in the notice of 
proposed action which the employe had had an oppor¬ 
tunity to answer. No other reasons are valid as a basis 
for the adverse decision. If it is determined that adverse 
action should be taken for reasons other than those set 
forth in the notice of proposed action, the agency must 
give the employe a new notice of proposed action and com- 


Appendix 


i 


ply with all other procedural requirements of the law and 
regulations * * *. If it is proposed to consider the past 
record for the purpose of applying a more severe penalty 
than would ordinarily be imposed on the charges, the 
elements in the past record should also be set forth in a 
new notice of proposed action, and all other procedural 
requirements followed * * *. If it is decided to take a 
more severe action against the employe than specified in 
the previous notice of proposed action the agency must 
give the employe a new notice of proposed action and 
comply with all other procedural requirements of the law 
and regulations.” 

Page 15. “* * * Where there is a violation of the 
procedural requirements the Commission will, without fur¬ 
ther inquiry into the merits of the personnel action, make a 
favorable finding for the employe on the ground that the 
adverse action was improper * * 

Page 17. “* * * An employe who is not notified of 
action by the appointing power until after the proposed 
effective date, and therefore continues to work beyond that 
date, is entitled to compensation for the services rendered 
until he receives the proper notice (22 Comp. Gen. 291, 
Sept. 30, 1942) * * *. The effective date must be so fixed 
as to comply with the requirements as to advance notice 
contained in statutes or regulations having the force of 
law. An example of such a requirement is that imposed 
under the Veterans’ Preference Act of 1944, which is de¬ 
scribed on page Sl-13 * * 

Page 21. “* * * The notice is usually, but is not re¬ 
quired to be given by furnishing the employe with a 
copy of the Personnel Action Form (Standard Form 50 or 
its equivalent) * * 

Page 22. “* * * The question whether or not the 
reasons for the * * * suspension * * * are sufficient is a 


Appendix 


j 

matter for final determination by the appointing officer 
* * * the suspension * * * if made must be upon one or 
more of the charges presented to the employe, which he 
has had opportunity to answer, and not upon others.’ , 

Page 35. “* * * It is the responsibility of the em¬ 
ploying agency, in all cases to give the required advance 
notice * * *.” 


Federal Rules of Civil Procedure 

Rule 7 (a). “There shall be a complaint and an 
answer; * * * No other pleading shall be allowed * * 

Rule 8 (c). “In pleading to a preceding pleading, a 
party shall set forth affirmatively * * * estoppel, * * * 
laches * * * res judicata * * * and any other matter con¬ 
stituting an avoidance or affirmative defense * * 

Rule 12 (a). “* * * The United States or an officer 
or agency thereof shall serve an answer to the complaint 
* * * within 60 days after., the service upon the United 
States Attorney of the pleading in which the claim is 
asserted * * 

Rule 12 (b) “Every defense, in law or fact, to a 
claim for relief in any pleading * * * shall be asserted in 
a responsive pleading thereto * * *.” 

Rule 12 (h). “Waiver of Defenses. A party waives 
all defenses and objections which he does not present 
either by motion as hereinbefore provided, or if he has 
made no motion, in his answer * * *. As amended Dec. 
27, 1946, effective March 19, 1948.” 






i hid}; 


I FOR APPELLEES 


IHniteti States Court of Appeal 

FOE THE DISTRICT OF COLUMBIA gggf^ , 

FILED apr 24 1S53 ' 


No. 11680 

I 

Harold E. Love, Appellant } 



CLERK 


v. 


Robert T. Stevens, Secretary of the Army, George M. - 
Humphrey, Secretary of the Treasury, Philip Young, 
Chairman, United States Civil Service Commission, 
and Lindsay Warren, Comptroller General, Appellees 


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT 

OF COLUMBIA 


f . - 

WARREN E. BURGER 

Assistant Attorney General 
LEO A. ROVER 

United States Attorney 
WILLIAM R. GLENDON 

Assistant United States Attorney 


Of Counsel: 

EDWARD H. HICKEY 
JOSEPH LANGBART 

Attorneys, Department of Justice 








QUESTIONS PRESENTED 


1. Whether a veteran who had passed a civil service 
examination and issued a certificate of eligibility could 
have the Court review the denial and refusal of a hearing 
as to the reason for the suspension of his eligibility. 

2. Whether laches and res judicata could be pleaded by 
motion rather than by answer under the Federal Rules of 
Civil Procedure. 





INDEX 


Page 


Questions presented. (i) 

Counterstatement of the case. 1 

Summary of Argument. 3 


Argument : 

I. The District Court properly held that the appellant had 
no standing to maintain an action to compel appellees 
to grant him a hearing with respect to the removal of his 
name from the register for appointment as Internal 


Revenue Agent. 5 

a. Proper and necessary parties are not before the 

Court . 10 

II. The defenses of laches and res judicata were properly 

raised and decided. 13 

a. Res Judicata . 16 

b. Laches. 19 

Conclusion . 23 

Appendix. 24 


CITATIONS 

Cases: 


Aktiebolaget Bofors v. United States, 90 App. D.C. 92, 194 F. 

2d 145 . 10 

Alley v. Craig, 97 F. Supp. 576. 10 

Almour v. Pace, 90 App. D.C. 63, 193 F. 2d 699. 10 

Anderson & Brown Co. v. Anderson, 161 F. 2d 974. 16 

Angilly v. United States, 199 F. 2d 642 . 6, 7 

A rant, United States ex rel. v. Lane, 47 App. D.C. 336, affd. 

249 U.S. 367 . 20 

Arant, United States ex rel. v. Lane, 249 U.S. 367 . 20 

Atlantic Freight Lines, Inc. v. Summerfield, No. 11437, de¬ 
cided April 2, 1953 . 6 

Ayers, In re, 123 U.S. 443 . 6 

B. & O. R.R. Co. v. United States, 298 U.S. 349. 12 

Bailey v. Richardson, 86 App. D.C. 248, 182 F. 2d 46, affd. 

divided court 341 U.S. 918. 6,7 

Barnhart v. Western Maryland Ry. Co., 41 F. Supp. 898. 21 

Blackmar v. Guerre, 342 U.S. 512. 12,13 

Blanch v. Cordero, 180 F. 2d 856, cert. den. 340 U. S. 819. 20 

348 Bloomfield Ave. Cory. v. Montclair Mfg. Co., 90 F. Supp. 

1020 . 16,17 

Borak v. Biddle, 78 App. D.C. 374, 141 F. 2d 278, cert. den. 

323 U.S. 738 . 7 

Bradley v. American Radiator & Standard Sanitary Cory., 

9 Fed. Rules Serv. 12b.334, Case 1. 16 

Brisbois v. Hague, 85 F. Supp. 13. 10 

Briscoe v. Bank , 8 Pet. 117. 12 

Brown, United States ex rel. v. Lane, 232 U.S. 598 . 7 


(in) 

































Cases—Continued 


IV 


Page 

Bumap v. United States, 252 U.S. 512. 7 

Butcher v. United Electric Coal Co., 174 F. 2d 1003. 21 

Campbell v. Deviny, SI F. Supp. 657, affd. 90 App. D.C. 176, 

194 F. 2d SSI . 10 

Carroll v. Pittsburgh Steel Co., 100 F. Supp. 749. 21 

Carter v. Forrestal, S5 App. D.C. 53, 175 F. 2d 364, cert. den. 

33S U.S. S32. 7 

Caswell v. Morgenthau, 69 App. D.C. 15, 9S F. 2d 296, cert. den. 

305 U.S. 596, mot. den. 306 U.S. 616. 9, 20 

Chamberlain v. United States, 66 Ct. Cls. 317, cert. den. 279 

U. S. 845. 20 

Christ off el v. United States, 33S U.S. S4... 12 

Connor v. Shell Oil Co., S Fed. Rules Serv. 12b334, Case 1. ... 16 

Cooley v. O’Connor, 12 Wall. 391. 12 

Croghan v. United States, 116 Ct. Cls. 577, cert. den. 340 U.S. 

854 . 7 

Cromwell, United Etates ex rel. v. Doyle, 69 App. D.C. 215, 99 
F. 2d 44S, cert. den. 306 U.S. 640, reh. den. 306 U.S. 669.... 20 

Crow, United States ex rel. v. Mitchell, 67 App. D.C. 61, 89 

F. 2d S05. 8, 9 

Daley v. Sears, Roebuck & Co., 90 F. Supp. 562, affd. 182 F. 

2d S47 . 17 

Decatur v. Paulding, 14 Pet. 497. 7 

Deviny v. Campbell, 90 App. D.C. 171, 194 F. 2d S76. 7 

Deviny v. Campbell, 90 App. D.C. 176, 194 F. 2d S81. 7 

Dixon v. American Telegraph Co., 159 F. 2d S63, cert. den. 332 

U.S. 764, rehs. den. 332 U.S. 839, S56, 333 U.S. 850. 21 

Dunlap, U. S. ex rel. v. Black, 128 U.S. 40. 9 

Eberlein v. United States, 257 U.S. 82. 7, IS 

Fahey v. O’Melveny <£• Myers, 200 F. 2d 420. 10 

Farley v. Abbetmeier, 72 App. D.C. 260, 114 F. 2d 569 . 20 

Farley v. United States, 67 App. D.C. 382, 92 F. 2d 533. 7 

Florasynth Laboratories Inc. v. Goldberg, 191 F. 2d 877. 17 

Friedman v. Schwellelnbach, 81 App. D.C. 365, 159 F. 2d 22, 

cert. den. 330 U.S. S3S, reh. den. 331 U.S. 865 . 7 

Frischer <£' Company v. Elting, 60 F. 2d 711. 12 

Frisher <£• Company v. Bakelite Corp. (Court of Customs and 

Patent Appeals), 39 F. 2d 247. 12 

Gadsden v. United States, 119 Ct. Cls. 86, 111 Ct. Cls. 4S7, cert. 

den. 342 U.S. S56. 7 

Gifford v. Travelers Protective Assn., 153 F. 2d 209 . 21 

Grasse v. Snyder, 89 App. D.C. 352, 192 F. 2d 35. 20 

Hammond v. Hull, 76 App. D.C. 301, 131 F. 2d 23, cert. den. 

318 U.S. 777 . 7 

Hart v. United States, 91 Ct. Cls. 308. 20 

Hartford-Empire Co. v. Glenshaw Glass Co., 47 F. Supp. 711. . 21 

Hartmann v. Time, Inc., 166 F. 2d 127, cert. den. 334 U.S. 

838 . 16 

Hays v. Port of Seattle, 251 U.S. 233 . 21, 22 

Hedger Transp. Co. v. Bushey & Sons, 92 F. Supp. 112, affd. 

1S6 F. 2d 236 . 17 



































Cases—Continued 


•v 


Page 

Heikkila v. Barber, Supreme Court, October Term, 1952, No. 

426, 21 Law Week 4249 . 10 

Hormel v. Helvering, 312 U.S. 552. 23 

Johnson v. United States, 68 Ct. Cls. 222 . 20 

Keene Lumber Co. v. Leventhal, 165 F. 2d 815. 16 

Keim v. United States, 117 U.S. 290. 7, 8, 9,10,18 

Kohlman v. Smith, 71 F. Supp. 73. 20 

Latta v. Western Inv. Co., 173 F. 2d 99, cert. den. 337 U.S. 940, 

rehs. den. 338 U.S. 840, 863 and 889. 20,21 

Levine v. Farley, 70 App. D.C. 381, 107 F. 2d 186, cert. den. 

30S U.S. 622 . 7 

Levy v. Woods, 84 App. D.C. 138,171 F. 2d 145. 7 

Love v. United States, 108 F. 2d 43, cert. den. 309 U.S. 673.... 7 

Love v. United States, 119 Ct. Cls. 486, 98 F. Supp. 770, cert. 

den. 342 U.S. 866 . 3,14,17,18 

Love v. United States, 122 Ct. Cls. 144,104 F. Supp. 102.. . 14,18,19 

Martin v. Dick Corp., 97 F. Supp. 961. 10 

McEachem v. United States, 84 F. Supp. 902. 10 

McGrimley v. Foley, 89 F. Supp. 10. 9,10 

Meyers v. United States, 84 App. D.C. 101, 177 F. 2d 800, cert. 

den. 336 U.S. 912. 12 

Nicholas v. United States, 257 U.S. 71. 20 

Norris v. United States, 257 U.S. 77. 20 

Olin Industries v. NLRB, 72 F. Supp. 225. 10 

Over field v. Pennroad Corp., 39 F. Supp. 482. 21 

Perkins v. Lukens Steel Co., 310 U.S. 113. 6 

Pou'ell v. Brannan, No. 11134, 91 App. D. C. —, 196 F. 2d 

871 . 6,7 

Price v. Reynolds Metals Co., 69 F. Supp. 82. 16 

Reagan v. United States, 182 U.S. 419. 7 

Riley v. Titus, 89 App. D.C. 79, 190 F. 2d 653, cert. den. 342 

U.S. 825, reh. den. 342 U.S. 8S9. 22 

Schwartz v. Levine & Malin, 111 F. 2d 81. 17 

Siskind v. Morgenthau, SO App. D.C. 249, 152 F. 2d 286. 7 

Snauffer v. Stimson, 81 App. D.C. 110,155 F. 2d 861. 20 

Snyder v. Buck, 75 F. Supp. 902, order vacated 85 App. D.C. 

428, 179 F. 2d 466, affd. 340 U.S. 15. 10 

Stoddard v. Morrin, S F.R.D. 375 . 21 

Taylor v. Taft, 24 App. D.C. 95, writ of error dismissed 203 

U.S. 461. 7 

Tennessee Electric Power Company v. TV A, 306 U.S. 118. ... 6 

Teren v. San^Nap-Pak Mfg. Co., Inc., 7 Fed. Rules Serv. 12b. 

334, Case 1 . 16 

United States, etc. v. Fleischer Eng. <6 Const. Co., 45 F. Supp. 

781 . 21 

United States v. Geisler, 174 F. 2d 992, cert. den. 338 U.S. 

861 . 14 

United States v. Kusche, 56 F. Supp. 201. 21 

White v. Berry, 171 U.S. 366 . 7 




































Statutes: 


VI 


Page 


Act of May 24, 1949, c. 139: 

Section 135, 63 Stat. 108. 1 

Section 142, 63 Stat. 110. 1 

Administrative Procedure Act, 5 U.S.C. 1001-1011. 5,10 

Section 10, 5 U.S.C. 1009. 10 

Veterans’ Preference Act: 

Section 13, 5 U.S.C. 862 . 5 

Section 14, 5 U.S.C. 863. 2,3,5,17,18 

Section 15, 5 U.S.C. 864 . 5 

United States Code: 

5 U.S.C. 632. 12 

5 U.S.C. 635. 11 

5 U.S.C. 862. 5 

5 U.S.C. 863. 2,3,5,17,18 

5 U.S.C. 864 . 5 

5 U.S.C. 1001-1011. 5,10 

5 U.S.C. 1009. 10 

District of Columbia Code: 

Section 11-305 . 1 

Section 11-306 . 1 

Section 11-315 . 1 

Rules of Court: 

Federal Rules of Civil Procedure: 

Rule 8— 

Subsection (c) .4,15,17,20,23 

Rule 12- 

Subsection (a) . 13 

Subsection (b) .14,15,17,22 

Subsection (h) . 13 

Rule 55— 

Subsection (e) . 14 

Rule 56. 15,22 

Rules of the United States District Court for the District of 
Columbia: 

Rule 9— 

Subsection (b) 


14 


























vn 

Miscellaneous: _ 

Page 

Annotation, Pleading Laches, 173 A.L.R. 326 . 23 

Code of Federal Regulations: 

Title 5— 

Part 7. 5 

Part 10. 5 

Part 22. 17 

Section 22.2(c). 18 

Executive Order No. 9830 . 11 

Section 01.4. 11 

Subsection (a) . 11 

Subsection (b) . 11 

2 Moore’s Federal Practice (2nd ed.).15,16, 20 

Reorganization Plan No. 5 of 1949 (14 F.R. 5228; note fol¬ 
lowing 5 U.S.C. 632) . 12 

Section 2(a) (6) . 15 

















®ntteb States Court of Appeals 

FOB THE DISTRICT OF COLUMBIA CIRCUIT 


No. 11680 

Harold R. Love, Appellant 
v. 

Robert T. Stevens, Secretary of the Army, George M. 
Humphrey, Secretary of the Treasury, Philip Young, 
Chairman, United States Civil Service Commission, 
and Lindsay Warren, Comptroller General, Appellees 


appeal from the united states district court for the district 

OF COLUMBIA 


BRIEF FOR THE APPELLEES 


COUNTERSTATEMENT of the case 

On April 29,1952, Harold Robert Love, an honorable dis¬ 
charged veteran of World War I, who ha4_been employed 
by various Departments and agencies of the Government 
between July 3, 1908 and September 19, 1947 (Complaint 
par. 3, Appellant’s App. p. 2), filed a complaint purporting 
to set forth three different causes of action. 1 The “First 

1 Paragraph 1 of the complaint stated that the jurisdiction of the 
District Court was “based upon Sections 11-306 and 11-315 of the 
District of Columbia Code * * * and Amendments to the Con¬ 
stitution, Articles V, VI and XIV.” Section 11-315 giving to the 
District Court for the District of Columbia authority to issue certain 
writs including mandamus was repealed by section 142 of the Act 
of May 24,1949, c. 139, 63 Stat. 110, but its substance probably was 
retained by the reenactment of section 11-305 allowing the District 
Court for the District of Columbia to “continue to have and exercise 
all the jurisdiction possessed and exercised by it on August 31, 1948” 
(section 135, 63 Stat. 108). 


( 1 ) 





2 


Complaint” (Appellant’s App. pp. 2-5), naming the Secre¬ 
tary of the Army, Chairman of the Civil Service Commis¬ 
sion, and Comptroller General of the United States as 
parties defendant, relates to an allegedly illegal suspension 
of appellant from his position with the War Department 
as a civilian cost auditor, grade CAF-9, at Detroit, Michi¬ 
gan, from December 27, 1944 to April 2, 1945. The “Sec¬ 
ond Complaint” against the same defendants (Appellant’s 
App. 6-11) concerns events in connection with appellant’s 
position as cost analyst, grade CAF-11, with the War De¬ 
partment at the Jeffersonville Quartermaster Depot, Jef¬ 
fersonville, Indiana, i.e., a suspension from July 16 to July 
23, 1947 (pars. 2 and 3, Appellant’s App. p. 6), refusal of 
compensation for the period August 4 to September 19, 
1947 (pars. 5, 6, and 7, Appellant’s App. p. 7), and dismissal 
as of September 19,1947 (par. 8, Appellant’s App. pp. 7-8). 
The “Third Complaint” (Appellant’s App. pp. 11-15) filed 
against the Secretary of the Treasury and the Chairman 
of the Civil Service Commission alleges that in 1951 the 
plaintiff took and passed a civil service examination for an 
appointment as Internal Revenue Agent (par. 3, Appel¬ 
lant’s App. pp. 11-12), received a statement of eligibility 
(id.), and that it was suspended on August 31, 1951 (par. 
4, Appellant’s App. p. 12); appellant contends that he was 
or is entitled to a hearing under section 14 of the Veterans’ 
Preference Act (par. 10, Appellant’s App. pp. 13-14) as 
to the reason for this suspension. 

The appellant, on June 25, 1952, filed a motion for sum¬ 
mary judgment and supporting affidavit (Appellant’s App. 
pp. 15-25). On July 3, 1952, the United States Attorney 
filed a motion to extend the defendants’ time to answer both 
the complaint and the motion for summary judgment to 
and including August 15, 1952 (Appellees’ App. p. 24). 
Thereafter, the Government, on or about July 25, 1952, 
filed a motion to dismiss the complaint (Appellees’ App. 
/p.^-25). Meanwhile, the plaintiff, on July 10, 1952, took 
steps to have a default judgment entered and asserted that 
the motion for summary judgment was conceded (Ap¬ 
pellant’s App. pp. 26-7; see also Objections of Plaintiff 



3 


etc., Appellant’s App. p. 29). In addition, the appellees 
on October 1, 1952, filed a supplemental memorandum of 
points and authorities in support of its motion to dismiss 
with respect to which the appellant had and exercised an 
opportunity to file an opposition (Appellant’s App. pp. 
33-41). 

On November 19,1952, the District Court entered an order 
granting the defendants’ motion to dismiss and denying 
the plaintiff’s motion for summary judgment (Appellant’s 
App. p. 49). In a memorandum opinion, dated October 31, 
and filed on November 5 (Appellant’s App. pp. 41-43), Judge 
Matthews set forth the reasons for the District Court’s 
action, to wit, (1) relief for the 1944 suspension was barred 
by laches, (2) the holding in the appellant’s earlier suit in 
the Court of Claims reported at 119 Ct. Cls. 486 and 98 F. 
Supp. 770^-“that plaintiff’s suspension and removal, from 
government service in 1947 were procedurally correct, and 
that he had been accorded all the rights to which he was 
entitled • # • bars plaintiff’s claim that his 1947 suspen¬ 
sion was illegal”, and (3) that “with respect to the portion 
of plaintiff’s complaint seeking to compel defendants to 
grant him a hearing concerning the removal of his name 
from the register for appointment as Internal Revenue 
Agent, plaintiff has no standing to maintain such action.” 
A notice of appeal was filed on December 29, 1952 by the 
appellant (Appellant’s App. p. 49), and a motion for recon¬ 
sideration was denied on December 30, 1952 (Appellant’s 
App. p. 53). 

SUMMARY OF ARGUMENT 

As for the matters before the Court on the basis of the 
record, the appellant contends that (a) he is entitled to 
review under section 14 of the Veterans’ Preference Act of 
the removal of his name from a register for appointment as 
Internal Revenue Agent in 1951, and (b) laches and res 
judicata were improperly pleaded by the appellees. 

Appellant’s argument is that he in some way is entitled to 
judicial review because after taking an examination for 
position as Internal Revenue Agent his certificate of eligi- 





4 


bility was suspended. It is well-established that judicial 
review of personnel functions of the Government is re¬ 
stricted to instances where the complainant has been de¬ 
prived of rights accorded by statute or regulation. Since 
the appellant only passed an examination for an appoint¬ 
ment, he has not acquired the status of a Federal employee 
to whom the statutes and regulations apply. The law is 
well-settled that the question raised is not a matter for the 
judiciary but is completely within the discretion of the Ex¬ 
ecutive branch of the Government. Moreover, even if his 
complaint stated a cause of action, the necessary parties for 
giving such relief were not before the Court. 

Appellant’s point that laches and res judicata, since they 
are affirmative defenses provided for by Rule 8(c), must be 
raised only by way of answrer and not by motion, is contrary 
to the authorities and the case decisions. The Courts in 
many instances have permitted res judicata and laches to be 
raised by motion. There seems to be no question that this 
was appropriately done with respect to the res judicata 
defense which is specified in the appellees’ motion to dismiss 
(See Appellees’ App. p. 2 S- With respect to the laches 
defense, this was originally raised by the appellees in a sup¬ 
plemental memorandum in support of the motion to dismiss 
submitted after the hearing by the Court on the plaintiff’s 
motion for summary judgment and the defendants’ motion 
to dismiss. Appellant’s argument is that he did not have 
an opportunity to oppose the interposition of this meritori¬ 
ous defense, but, as noted infra , he did file a memorandum 
in opposition to this defense. In any event, since both de¬ 
fenses are dispositive of the issues in this case, the Court 
should affirm the lower court’s judgment because otherwise 
on remand to the trial court the appellees wmuld interpose 
these defenses in the manner deemed appropriate by this 
Court. 


5 


ARGUMENT 

I 

The District Court Properly Held That the Appellant Had No 
Standing to Maintain an Action to Compel Appellees to Grant 
Him a Hearing with Respect to the Removal of His Name 
from the Register for Appointment as Internal Revenue 
Agent 

Appellant asserts that he has been wrongfully refused 
certification, appointment, reinstatement or reemployment 
and that he is entitled to an administrative hearing under 
section 14 of the Veterans’ Preference Act (Appellant’s 
Brief, pp. 3-4, 7 (par. 5), 11 (par. 8), and 35-38). The ap¬ 
pellant further alleges that he is entitled to judicial review 
under the Administrative Procedure Act (5 U.S.C. 1001- 
1011) if the decision of such a hearing is adverse to him or 
if such hearing is denied him. 

Although using terms indicating that he is seeking reap¬ 
pointment, reinstatement or reemployment, which have 
particular meaning in civil service parlance (see, e.g., sec¬ 
tions 13 and 15 of the Veterans’ Preference Act (5 U.S.C. 
862 and 864) and Title 5 Code of Federal Regulations (1949 
ed.) Parts 7 and 10), appellant’s only claim is for removal 
of his name from the register of Internal Revenue Agents. 
The pertinent facts giving rise to this claim are as follows: 

(a) On or about May 19, 1951, Love took a written 
examination for Internal Revenue Agent, passed it, and 
was issued a statement of eligibility on June 7 by the 
Board of the U. S. Civil Service Examiners, Bureau of 
Internal Revenue, St. Paul, Minnesota (Third Com¬ 
plaint, par. 3, Appellant’s App. pp. 11-12); 

(b) On August 31, 1951 the Board of the United 
States Civil Service Examiners, Bureau of Internal 
Revenue, U. S. Treasury Department, St. Paul, Minne¬ 
sota, notified the appellant that his eligibility had been 
suspended (Third Complaint, par. 4, Appellant’s App. 

p. 12); 

(c) On January 10, 1952, Robert Ramspeck, Chair¬ 
man of the Civil Service Commission, advised the ap¬ 
pellant that he had not been adversely affected within 
the meaning of section 14 of the Veterans’ Preference 






6 


Act (Third Complaint, par. 6, Appellant’s App. p. 12); 

(d) In addition, appellant alleged that he has made 
further request and inquiries which have not been 
answered and that vacancies in the position of Internal 
Revenue Agent have occurred and that he was not con- 
siderd for appointment in those positions (Third Com¬ 
plaint, pars. 7, S and 9, Appellant’s App. pp. 12-13). 

As noted by the District Court, appellant “has no stand¬ 
ing to maintain such action. Perkins v. Lukens Steel Co., 
310 U. S. 113; Powell v. Brannan, 196 F. 2d 871; Keirn v. 
United States, 177 U. S. 290, 295.” It is well-settled that one 
may not maintain an action unless he can show an invasion 
of a legally protected right ( Perkins v. Lukens Steel, supra; 
see also Atlantic Freight Lines, Inc, v. Summerfield, No. 
11437, decided April 2, 1953). Such a right is one of prop¬ 
erty, arising out of contract, one protected against tortious 
invasion or one founded on a statute which confers a privi¬ 
lege (see Tennessee Electric Power Company v. TV A, 306 
U. S. 118; In re Ayers, 123 U. S. 443). Appellant, as an 
applicant for Federal employment, is unable to show any 
invasion of a legal protected right. As this Court in Bailey 
v. Richardson, 86 App. D.C. 248, 182 F. 2d 46, affirmed by 
divided court 341 U. S. 918, said: 

“It has been held repeatedly and consistently that 
Government employ is not ‘property’ and in this par¬ 
ticular it is not a contract, (p. 259) ”. 

See also Angilly v. United States (C.A. 2), 199 F. 2d 642, 
644. A fortiori an applicant for a Federal position has no 
property or contractual right. 

As pointed out by this Court in its recent opinion in 
Powell v. Brannan, No. 11134, slip opinion pp. 2 and 3, 91 
App. D.C. —, 196 F. 2d 871, the scope of judicial review in 
cases concerning Federal employees is a very narrow one. 
This Court, speaking through Judge Washington, said: 

“We think it well to reiterate that in civil service 
cases the task of the courts is a limited one. Certainly 
they cannot undertake to pass on a plaintiff’s qualifica¬ 
tions for any given post, or to compare them with those 
of an incumbent. It is not within their province to 


7 


weigh the merits of a person’s claim to a Federal job. 2 
Congress has established administrative machinery to 
make these determinations. Where there has been a 
substantial departure from applicable procedures, a 
misconstruction of governing legislation, or like error 
going to the heart of the administrative determination, 
a measure of judicial relief may on occasion be obtain¬ 
able. 3 ” 

From the cases cited by this Court in footnotes 2 and 3 
referred to in the above-quoted paragraph, such limited 
review involves only removal of Federal employees from 
office. The underlying theory of these cases is that the 
judiciary will not interfere with the functions of the Execu¬ 
tive departments committed to their discretion. Decatur 
v. Paulding, 14 Pet. 497, 516. This principle has been re¬ 
peatedly reiterated in cases concerning personnel matters 
of the Government. 2 

Where, as in this instance, the person seeking recourse 
for alleged wrongs has not the status of a Federal em¬ 
ployee but is merely seeking employment, these rules of 
judicial restraint have particular application. This is quite 


2 Eberlein v. United States, 257 U.S. 82; Bumap v. United States, 
252 U.S. 512; United States ex rel. Brown v. Lane, 232 U.S. 598; 
Reagan v. United States, 182 U.S. 419; Keim v. United States, 177 
U.S. 290; White v. Berry, 171 U.S. 366. Deviny v. Campbell, 90 App. 
D.C. 171,194 F. 2d 876; Deviny v. Campbell, 90 App. D.C. 176, 194 
F. 2d 881, affirming 81 F. Supp. 657; Bailey v. Richardson, 86 App. 
D.C. 248, 182 F. 2d 46, affirmed by divided court, 341 U.S. 918; 
Carter v. Forrestal, 85 App. D.C. 53,175 F. 2d 364, cert. den. 338 U.S. 
832; Levy v. Woods, 84 App. D.C. 138, 171 F. 2d 145; Friedman v. 
Schwellenbach, 81 App. D.C. 365, 159 F. 2d 22, cert. den. 330 U.S. 
838, reh. den. 331 U.S. 865; Siskind v. Morgenthau, 80 App. D.C. 
249,152 F. 2d 286; Borak v. Biddle, 78 App. D.C. 374, 141 F. 2d 278, 
cert. den. 323 U.S. 738; Hammond v. Hull, 76 App. D.C. 301, 131 
F. 2d 23, cert. den. 318 U.S. 777; Levine v. Farley, 70 App. D.C. 
381.107 F. 2d 186, 8, cert. den. 308 U.S. 622; Farley v. United States, 
67 App. D.C. 382, 92 F. 2d 533; and Taylor v. Taft, 24 App. D.C. 
95, writ of error dismissed 203 U.S. 461. Sec also Angilly v. United 
States (C.A. 2), 199 F. 2d 642; Gadsden v. United States, 119 Ct. 
Cls. 86, 111 Ct. Cls. 487, cert. den. 342 U.S. 856; Croghan v. United 
States, 116 Ct. Cls. 577, cert. den. 340 U.S. 854; Love v. United States, 
108 F. 2d 43, cert, den, 309 U.S. 673. 




8 


clearly expressed in Keim v. United States, 177 U. S. 290, 
where the Supreme Court, at pp. 295-6, said: 

“Nowhere in these statutory provisions is there any¬ 
thing to indicate that the duty of passing, in the first 
instance, upon the qualifications of the applicants, or, 
later, upon the competency or efficiency of those who 
have been tested in the service, was taken away from 
the administrative officers and transferred to the courts. 
Indeed, it may well be doubted whether that is a duty 
which is strictly judicial in its nature. It would seem 
strange that one having passed a civil service exami¬ 
nation could challenge the rating made by the com¬ 
mission, and ask the courts to review such rating, thus 
transferring from the commission, charged with the 
duty of examination, to the courts a function which is, 
at least, more administrative than judicial; and if 
courts should not be called upon to supervise the re¬ 
sults of a civil service examination equally inappro¬ 
priate would be an investigation into the actual work 
done by the various clerks, a comparison of one with 
another as to competency, attention to duty, etc. These 
are matters peculiarly within the province of those 
who are in charge of and superintending the depart¬ 
ments, and until Congress by some special and direct 
legislation makes provision to the contrary, we are 
clear that they must be settled by those administrative 
officers.’ ’ 

Most apposite to the instant matter is the decision of 
this Court in United States ex. rel. Crow v. Mitchell , 67 
App. D. C. 61, 89 F. 2d 805. The situation giving rise to 
that suit was as follows: attorneys’ positions had been 
set up at the Federal Communications Commission although 
no civil service register existed from which appointments 
to these positions could be made; temporary appointments 
were authorized, and, subsequently, an examination was 
held and a register established; plaintiff was placed at the 
head of the register but the President, at the request of the 
Commission, issued an Executive Order authorizing perma¬ 
nent appointments of the temporary appointees without 
regard to their standing on the register. Plaintiff, who 
did not get a position, filed suit in order to have the appoint¬ 
ments set aside and further that appointments be made 



9 


from the register. The Court of Appeals affirmed the action 
of the District Court dismissing the complaint. In reach¬ 
ing its decision that the District Court’s action was proper 
this Court said that the plaintiff was attempting to try- 
title to office which could not be done by mandamus. It 
finally concluded, at page 65, as follows: 

“Then again mandamus cannot issue to interfere 
with the executive officers of the government in the 
exercise of their ordinary official duties even where 
those duties require an interpretation of the law. U. S. 
ex rel. Dunlap v. Black, 128 U. S. 40. # * • And 
this, in turn, grows out of the fact that courts should 
always proceed with extreme caution where the grant¬ 
ing of the writ would result in interference by the 
judicial department with the management of the exe¬ 
cutive department of the government, * * V’ 

The case of McGrimley v. Foley (D. Mass.), 89 F. Supp. 
10, presents a situation comparable to the one before this 
Court. There the plaintiffs were seeking to acquire a per¬ 
manent employee status with the Post Office Department. 
In addition to being temporary employees, the plaintiffs 
had passed a competitive examination and were veterans. 
As pertinent here, the Court said: 

“Furthermore, insofar as a federal question is al¬ 
leged to be involved, plaintiffs point to no authority 
in either the Veterans’ Preference Act or the Civil 
Service statutes and regulations by which this Court 
can either find that their rights have been abridged or 
grant a remedy for such abridgment. The prayers of 
the bill indicate the desire of plaintiffs to have re¬ 
moved from the Post Office Department and the Civil 
Service Commission all discretion as to whom it shall 
include in a future choice of permanent employees, and 
substitute therefor the judgment of this Court. Be¬ 
cause this is the basic relief sought, to which all other 
remedies requested are collateral, this is a request 
for a remedy in the nature of mandamus, no authority 
for granting which has been pointed out to this Court. 
See Caswell v. Morgenthau, 1938, 69 App. D. C. 15, 98 
F. 2d 296. The remedy asked would also be unwar¬ 
ranted interference by the judiciary with discretionary 
executive action. Keim v. United States, 1900,177 U. S. 



10 


290, 20 S. Ct. 574, 44 L. Ed. 774. There is no authority 
for the judicial branch of the government to override 
the executive branch unless it is specifically granted 
either in the Constitution or by statute. No such grant 
has been shown. It is a well recognized principle of 
law’ that jurisdiction of this Court must be affirmatively 
alleged and shown in the bill of complaint. This has 
not been done and probably cannot.” (p. 12). 

Appellant did not become a Federal employee and so is 
not entitled to rights and benefits under section 14 of the 
Veterans’ Preference Act. Consequently, he is unable even 
to obtain the limited type of review which the Courts 
exercise other civil service and Government personnel 
matters. 

The Administrative Procedure Act (5 U. S. C. 1001-1011) 
in now’ise has changed the function of the Courts in this 
respect. Section 10 of that Act (5 U. S. C. 1009), relating 
of the existing law’ of judicial review and conferred no 


F 1 **■ I il» J K»lii i KruPl WUi im »■!*>»***•*•• •» 


jurisdiction beyond that already possessed by the District 
Courts. Heikkila v. Barber, Supreme Court, October Term 
1952, No. 426, 21 Law’ Week 4249; Campbell v. Deviny (D. C. 
D. C.), 81 F. Supp. 657, 660, affd. 90 App. D. C. 176, 194 F. 
2d 881; Aktiebolaget Bofors v. United States, 90 App. D. C. 
92,194 F. 2d 145,149; Aim our v. Pace, 90 App. D. C. 63, 193 
F. 2d 699, 701; Alley v. Craig (D. Maine, S. D.), 97 F. Supp. 
576, 8; Brisbois v. Hague (D. Mass.), 85 F. Supp. 13, 14; 
and Olin Industries v. NLRB (D. Mass.) 72 F. Supp. 225, 
228. 3 

A. PROPER AND NECESSARY PARTIES ARE NOT BEFORE THE COURT 

Even assuming arguendo that the “Third Complaint” 
states a cause of action, it should be noted that the parties 
named as defendants, that is, the Secretary of the Treasury 
and the Chairman of the Civil Service Commission, cannot 
give the relief requested. 

3 See also Snyder v. Buck (D.C. D.C.), 75 F. Supp. 902, 906, order 
vacated 85 App. D.C. 428, 179 F. 2d 466, affd. 340 U.S. 15; Mc- 
Eachm v. United States (W.D. S.C.), 84 F. Supp. 902, 904-5; Fahey 
v. O’Melveny & Myers (C.A. 9), 200 F. 2d 420, 478; Martin v. Dick 
Corp. (W.D. Pa.), 97 F. Supp. 961. 


11 


The Board of the United States Civil Service Examiners, 
Bureau of Internal Revenue, is under the direction and 
supervision of the Civil Service Commission rather than 
of either the Bureau of Internal Revenue or the Depart¬ 
ment of the Treasury so that the Secretary of the Treasury 
cannot afford the relief requested by the appellant. The 
Board of Examiners was appointed under the authority 
of 5 U.S.C. 635 which inter alia states: 

“The [Civil Service] commission shall • # * desig¬ 
nate and select a suitable number of persons, not less 
than three, in the official service of the United States, 
# # • after consulting the head of the department or 
office in wdrich such persons serve, to be members of 
boards of examiners • # Such boards of examiners 
shall be located as to make it reasonably convenient 
and inexpensive for applicants to attend before them; 
and • * * examination shall be held therein at least 
twice each year # * 

Section 01.4 of Executive Order No. 9830 of February 24, 
1947 (Code of Federal Regulations (1938 ed.) Supplement 
1947), which further implements this authority, inter alia 
provides: 

“(a) In order to promote the effective recruitment 
and placement of persons for the Federal service, the 
departmental and field service resources of the Federal 
agencies may be utilized to the extent permitted by 
law. After consulting the agency or agencies con¬ 
cerned, the Commission may establish in the depart¬ 
mental service committees of examiners, expert in their 
respective fields, for scientific, professional, or tech¬ 
nical positions, and in the field service, boards of ex¬ 
aminers for any position. If such a position is peculiar 
to an agency, the committee or board shall be com¬ 
posed of not less than three qualified officers or em¬ 
ployees of the agency concerned. If such a position 
exists in more than one agency, the committee or board 
shall be composed of not less than three qualified offi¬ 
cers or employees of the agencies concerned. 

“ (b) The work of the committees or boards referred 
to in this section shall be under the direction and 
supervision of the Commission in connection with the 
execution of the Civil Service Act, Rules, and Regu¬ 
lations. ” 




12 


It seems clear from the foregoing that although the 
members of the boards of examiners are employees of the 
Bureau of Internal Revenue, the functions performed are 
under the direction or supervision of the Civil Service 
Commission and not of the Secretary of the Treasury or 
of the Collector of Internal Revenue. Thus the Secretary 
of the Treasury would be unable to grant the relief re¬ 
quested by the appellant even if he were so ordered by 
the Court. 

As for the Civil Service Commission, only the Chairman 
is named defendant. As this Court is well aware “the Civil 
Service Commission is not a corporate entity which Con¬ 
gress has authorized to be sued” so that “a suit involving 
the action of the Commission generally must be brought 
against the individual Commissioners as members of the 
United States Civil Service Commission” (Blackmar v. 
Guerre, 342 U. S .512, 515). Since “no service was had upon 
[any of] the individuals comprising the Civil Service Com¬ 
mission”, the District Court had no jurisdiction over the 
claim for judicial review of an adverse ruling under section 
14 of the Veterans’ Preference Act. In this instance, only 
Robert Ramspeck, Chairman of the Civil Service Commis¬ 
sion, is named as defendant so only he of the three Civil 
Service Commissioners (5 U. S. C. 632) was before the 
District Court. 4 Obviously this is not enough under the 
Blackmar case, supra. 

In making this argument we are well aware that Re¬ 
organization Plan No. 5 of 1949 (14 F. R. 5228; note follow¬ 
ing 5 U. S. C. 632) transferred certain executive and ad¬ 
ministrative functions of the Civil Service Commission to 
the Chairman. However, reserved to the whole commis- 

4 A multi-member body, such as a board, commission, or tribunal, 
in the absence of specific authority to the contrary, can act only 
through a quorum of its membership. See Frischer & Company v. 
Bakelite Corp. (Court of Customs and Patent Appeals), 39 F. 2d 
247, 254-5, and cases cited; Frischer & Company v. Elting (C.A. 2), 
60 F. 2d 711, 714; see also B & 0 RR Co. v. United States, 298 U.S.C. 
349, 362; Cooley v. O'Connor, 12 Wall. 391; Briscoe v. Bank, 8 Pet. 
117; and compare Christoffel v. United States, 338 U.S. 84, with 
Meyers v. United States, 84 App. D.C. 101, 177 F. 2d 800, 811, cert, 
den. 336 U.S. 912. 


13 


sion were functions with respect to section 14 of the Vet¬ 
erans’ Preference Act which appellant apparently contends 
applies to him. 5 Consequently, as intimated by the Su¬ 
preme Court in Blackmar v. Guerre, 342 U. S. 512, 515, 
supra, all the Civil Service Commissioners are indispen¬ 
sable parties in an action such as this. Since all the Com¬ 
missioners are not named party defendants, the Third Com¬ 
plaint, even if it stated a cause of action, could not be 
effectuated by an order of the Court. 

Insofar as concerns the appellant’s “Third Complaint”, 
either the Court properly held that the appellant was not 
entitled to the relief, or the persons who could give the 
relief requested are not before the Court. Appellant has 
no right of which he was aggrieved and he does not come 
within the orbit of cases where Courts will review personnel 
operations and policies of the Government. Even if ap¬ 
pellant has demonstrated an invasion of his rights pro¬ 
vided by the Veterans’ Preference Act, he has failed to sue 
all the parties necessary to afford him that relief, that is, 
all members of the Civil Service Commission. 

II 

The Defenses of Laches and Res Judicata Were Properly Raised 

and Decided 

Appellant contests the manner in which the laches and 
res judicata defenses were raised. 6 As to laches (which 

5 See section 2(a)(6) which in part states: 

“* * # That there are not transferred by the provisions of 
this section 2(a)(6) the functions of the Commission with 
respect to: 

« # * 

“(iv) the hearing or providing for the hearing of appeals, in¬ 
cluding appeals with respect to examination ratings, veterans’ 
preference, * * * disciplinary action, * * * and dis¬ 
missals, and the taking of such final action on such appeals as 
is now authorized to be taken by the Commission * * 

6 Appellant’s assertions that the appellees were in default (Appel¬ 
lant’s Brief, p. 7) is completely frivolous. The simple answer is that 
within the sixty day period for answering (Rule 12(a) of the Fed¬ 
eral Rules of Civil Procedure) the United States Attorney made a 
Motion for Extension of Time to Answer Complaint and Answer 


14 


Judge Matthews held barred the claim set forth in the “First 
Complaint”), appellant contends that under Rule 12(h) 
of the Federal Rules of Civil Procedure there has been a 
waiver because not raised in the appellees’ motion to dis¬ 
miss (Appellant’s Brief, pp. 7-8 (pars. 8 and 9) 17-20). 
The res judicata defense, he states, is erroneous because in 
neither Love v. United States, 119 Ct. Cls. 4S6, 98 F. Supp. 
770, nor Love v. United States, 122 Ct. Cls. 144, 104 F. 
Supp. 102, did the Court of Claims “litigate nor determine 
the question involved here” (Appellant’s Brief, pp. 21 
and 23). 

As noted by Judge Matthews “Ordinarily, res judicata 
and laches are affirmative defenses which under Rule 12(b) 
should properly be raised by a responsive pleading” 7 but 
“these defenses have been raised by motion, and it appears 
that where substantive rights of the parties are not en¬ 
dangered, the manner of raising the defense is unim¬ 
portant.” 

This interpretation of the Federal Rules of Civil Proce¬ 
dure is supported by the weight of authority. One of the 

Motion for Summary Judgment “to and including August 15, 1952” 
(Appellees’ App. p. 24). Moreover, the appellant would not have 
been entitled to a default judgment because he could not sustain the 
burden of proof imposed by subsection (e) of Rule 55 (see United 
States v. Geisler (C.A. 7), 174 F. 2d 992. 999, cert. den. 338 U.S. 
861). It also might be noted that under Rule 9(b) of the District 
Court’s Rules the failure to file a memorandum of opposing points 
and authorities does not result in the motion being granted auto¬ 
matically but it is a matter for the Court’s discretion. 

7 Subsection (b) of Rule 12 of the Federal Rules of Civil Proce¬ 
dure in pertinent part provides: 

“Every defense, in law or fact, to a claim for relief in any 
pleading * * * shall be asserted in the responsive pleading 
* * * except that the following defenses may at the option 
of the pleader be made by motion: (1) lack of jurisdiction over 
the subject matter, (2) lack of jurisdiction over the person, 
(3) improper venue, (4) insufficiency of process, (5) insuffi¬ 
ciency of service of process, (6) failure to state a claim upon 
which relief can be granted, (7) failure to join an indispensable 
party. A motion making any of these defenses shall be made 
before pleading if a further pleading is permitted.” 




15 


most eminent text writers on the Federal Rules has the fol¬ 
lowing to say: 

“Rule 8(c) might seem to imply that affirmative de¬ 
fenses may be raised only by a pleading (where one is 
required or permitted) and not otherwise. This, how¬ 
ever, is too narow a construction of the rule. A defend¬ 
ant may move for summary judgment under Rule 56 
where ‘there is no genuine issue as to any material fact’ 
and he ‘is entitled to a judgment as a matter of law’; 
and it is clear that summary judgment is proper where 
the defendant shows the existence of an affirmative 
defense even though lie lias filed no answer. Under the 
1946 amendment to Rule 12(b), it is also made clear 
that a defendant may raise an affirmative defense by a 
motion to dismiss for failure to state a claim; and that 
the court may treat such a motion as a motion for sum¬ 
mary judgment. Prior to this amendment, most courts 
had held that an affirmative defense might not be raised 
by motion where the defense did not appear on the face 
of the complaint, although some courts sanctioned the 
use of the ‘speaking motion’ to show facts negating 
plaintiff’s claim. By analogizing the motion to a mo¬ 
tion for summary judgment, however, the amended 
Rule 12(b) clearly permits affirmative defenses to be 
raised by motion. It should be noted, however, that 
disputed issues of fact cannot be disposed of on affi¬ 
davits. Only if it is shown that there is no genuine 
factual issue as to the existence of the affirmative de¬ 
fense can the court sustain the motion and dismiss the 
action on that basis.” (2 Moore’s Federal Practice 
(2nd ed.), par. 8.28, pp. 1698-9). 

As the following discussion will demonstrate, both laches 
and res judicata have frequently been raised by motion. 
It might be noted in passing that others of the affirmative 
defenses set forth in Rule 8(c) 8 similarly have been raised 


8 “Affirmative Defenses. In pleading to a preceding pleading, a 
party shall set forth affirmatively accord and satisfaction, arbitra¬ 
tion and award, assumption of risk, contributory negligence, dis¬ 
charge in bankruptcy, duress, estoppel, failure of consideration, 
fraud, illegality, injury by fellow servant, laches, license, payment, 
release, res judicata, statute of frauds, statute of limitations, waiver, 
and any other matter constituting an avoidance or affirmative de¬ 
fense.” 




16 


by motion: illegality ( Bradley v. American Radiator & 
Standard Sanitary Cory. (S.D. N.Y.), 9 Fed. Rules Serv. 
12b.334, Case 1); statute of frauds ( Keene Lumber Co. v. 
Leventhal (C.A. 1), 165 F. 2d 815, 820, and cases cited 
there; Price v. Reynolds Metals Co. (E.D. N.Y.), 69 F. Supp. 
82; Connor v. Shell Oil Co. (S.D. N.Y.), 8 Fed. Rules Serv. 
12b.334, Case 1; and Teren v. San-Nap-Pak Mfg. Co., Inc. 
(S.D. N.Y.), 7 Fed. Rules Serv. 12b.334, Case 1); and see 
also Anderson & Brown Co. v. Anderson (C.A. 7), 161 F. 
2d 974. 

A. RES JUDICATA 

In addition to the cases cited by Judge Matthews, i.e., 
Hartmann v. Time, Inc. (C.A. 3), 166 F. 2d 127, cert. den. 
334 U.S. 838, and 348 Bloomfield Ave. Corp. v. Montclair 
Mfg. Co. (D. N.J.), 90 F. Supp. 1020, there are other cases 
to the same effect. 

Before referring to them some note might be made of the 
pertinent remarks made in the Bloomfield v. Montclair case. 
There the Court at p. 1021 said: 

“Ordinarily the defense of res judicata is pleaded 
as an affirmative defense under the Federal Rules of 
Civil Procedure, 28 U.S.C.A. However, where the sub¬ 
stantive rights of the parties are not endangered, the 
manner of raising the defense is unimportant. Motions 
of a similar nature have been treated as answers and 
as motions for summary judgment. In Hartmann v. 
Time, Inc., 3 Cir., 1947, 166 F. 2d 127, 1 A.L.R. 2d 370, 
certiorari denied 334 U.S. 838, 68 S. Ct. 1495, 92 L. Ed. 
1763, on motion for summary judgment defendant filed 
an affidavit setting up pleadings and judgments in suits 
between the parties involving the same issue. The court 
said that the pleadings and judgments were properly 
treated as a plea of res judicata by the District Court. 
In a footnote the court stated that a defense of this 
may be raised either by motion to dismiss or in the 
answer. See: 2 Moore’s Federal Practice, 2nd edition, 
par. 8.28 and par. 12.09. In this case both parties have 
had the opportunity to submit, and have submitted, af¬ 
fidavits from which it clearly appears that there is no 
genuine issue as to a material fact so far as the defense 
of res judicata is concerned. In such a circumstance 
the court may properly pass upon the legal sufficiency 


17 


of the defense. Brooks v. Pennsylvania R. Co., 5 Cir., 
1949,178 F. 2d 602.’’ (Emphasis added.) 

The Court in approving the raising of res judicata by 
motion in Hedger Trcmsp. Co. v. Bushey & Sons (E.D. N.Y.), 
92 F. Supp. 112, affd. 186 F. 2d 236 (C.A. 2), said: 

“There is a suggestion in the papers submitted on 
behalf of the plaintiff that the Federal Rules of Civil 
Procedure make no provision for dismissal of a com¬ 
plaint on the grounds of res judicata. It is true that 
that defense is one required to be specifically pleaded 
in the answer, Fed. Rules Civ. Proc., rule 8(c), 28 
U.S.C.A., and it is not mentioned by name as one of 
the defenses which may be presented by motion, 
F.R.C.P. 12(b). However it would be the utmost folly 
to construe the rules to forbid the assertion by motion 
prior to answer of a defense like res judicata , espe¬ 
cially where the judgments relied upon are ones which 
were rendered in the very court which is asked to pass 
upon the motion. At the very least such a motion can 
be treated as a speaking demurrer within the spirit of 
the rules.” (p. 113). 

Similar action was taken in Florasynth Laboratories Inc. 
v. Goldberg (C.A. 7), 191 F. 2d 877; Daley v. Sears, Roe¬ 
buck & Co. (N.D Ohio, E.D.), 90 F. Supp. 562, affd. 182 F. 
2d 847; Schwartz v. Levine & Malin (C.A. 2), 111 F. 2d 81. 

There is little question that appellant was timely ap¬ 
praised of the res judicata defense (subpart (3) of the ap¬ 
pellees’ motion to dismiss, Appellees’ App. $p. 25“-^which 
was based primarily on the fact that the appellant had 
twice sought relief in the Court of Claims (119 Ct. Cls. 486, 
98 F. Supp. 770, cert. den. 342 U.S. 866; and 122 Ct. Cls. 
144, 104 F. Supp. 102). 

According to the findings of fact in the case reported in 
119 Ct. Cls., Love was discharged from his position as Cost 
Analyst, CAF-9 at the Jeffersonville Quartermaster Depot, 
Jeffersonville, Indiana, on September 4, 1947, and his sub¬ 
sequent appeal under section 14 of the Veterans’ Preference 
Act resulted in an ultimate determination by “the Director 
of the Sixth United States Civil Service Region # • # that 
the suspension of Harold R. Love was in accordance with 




18 


Civil Service Regulation 22.2(c) under Section 14 of the 
Veterans’ Preference Act and also found that plaintiff’s 
separation on the grounds of false accusation and willful 
insubordination was warranted and promoted the efficiency 
of the service” (par. 7, 119 Ct. Cls. at p. 490) and further 
that the Civil Service Commission’s Board of Appeals and 
Review, after hearings on February 24 and 25, 1948, ‘‘af¬ 
firmed the propriety of the plaintiff’s separation in its 
decision of July 23, 1948” (par. 8, 119 Ct. Cls. at p. 491). 
The Court of Claims found that “the procedural require¬ 
ments as set out in the law have been complied with” and 
it “has no jurisdiction to review the cause for removal. 
Eberlein v. United States, 257 U.S. 82; Keim v. United 
States, 177 U.S. 290.” (119 Ct. Cls. at p. 493; see supra, 
pp. 7-10). 

In the second Court of Claims case, reported at 122 Ct. 
Cls. 144 and 104 F. Supp. 102, Love was seeking recovery 
“for back salary on five claims”. These claims were as 
follows: 

(1) a claim for the suspension from the cost account¬ 
ant and auditor position from December 27, 1944, to 
April 2, 1945; 

(2) salary differential between CAF-8 and CAF-11 
for an illegal demotion between July 13 and August 
20, 1947; 

(3) salary for unlawful suspensions between July 
16 and July 23, 1947, and August 5 and September 19, 
1947; and 

(4) salary from September 19, 1947, because of an 
illegal dismissal. 

The first claim was held barred by the six-year statute of 
limitations. With the exception of the salary claim for the 
July 13 to August 20 period ((2) supra), the Court of 
Claims held that the other claims were barred by its earlier 
decision (119 Ct. Cls. 486, cert. den. 342 U. S. 866). The 
Court categorically stated that in its view “plaintiff has 
very definitely had his day in court, and he failed to show 
the merit of his contentions. It would be a complete waste 
of time of the court and of the litigants to retry the various 


19 


issues.” (122 Ct. Cls. 148). This same rationale applies 
here, and the appellant can point to no reason why it should 
not. 

Mr. Love coincidentally raised the same objection in the 
Court of Claims as he makes here, to wit, he contended that 
the defenses of statutes of limitations and res judicata, 
which were raised by a motion to dismiss, “are not properly 
before the court, and that under the rules of court such de¬ 
fenses must be raised by answer.” (122 Ct. Cls. at p. 148). 
Chief Judge Jones, after referring to the fact that the Court 
of Claims rules were modelled on the Federal Rules of Civil 
Procedure in this respect, gave short shrift to this argu¬ 
ment. His observations were as follows: 

“Plaintiff’s rights in the instant case have been in no 
way endangered by the procedure herein, and he has 
had full opportunity for briefing and oral argument. 
The arguments having been fully considered, there is 
no legitimate end to be served in delaying the disposi¬ 
tion of the case. Accordingly we believe that plaintiff’s 
objections that the court cannot now consider these de¬ 
fenses are without merit. 

“It may be noted that one objective of the federal 
rules, and of the revised rules of this court, is to en¬ 
courage quick presentation of the defenses and objec¬ 
tions, and to limit successive motions which prolong 
such presentation.” (122 Ct. Cls. at p. 150). 

The foregoing analysis, we believe, shows that the res 
judicata issue was raised in a manner contemplated by the 
Federal Rules of Civil Procedure. Further, since the Court 
of Claims cases without any doubt were based on the facts 
set forth in Mr. Love’s “Second Complaint,” and further 
since relief was denied him because he was afforded all the 
procedural rights entitled to under the Civil Service laws 
and regulations, appellant is unable to contest the propriety 
of the holding by Judge Matthews that res judicata barred 
relief on the “Second Complaint.” 

B. LACHES 

That the appellant was guilty of laches by delaying in 
seeking relief for an alleged illegal suspension in 1944 seems 




20 


clear under the holdings of the Supreme Court, this Court, 
and many other Courts. United States ex rel. Arant v. 
Lane, 249 U. S. 367, 372; Grasse v. Snyder, 89 App. D.C. 352, 
192 F. 2d 35, 37; Snauffer v. Stimson, 81 App. D.C. 110,155 
F. 2d 861; United States ex rel. Cromwell v. Doyle, 69 App. 
D.C. 215, 99 F. 2d 448, cert. den. 306 U.S. 640, reh. den. 306 
U.S. 669; Caswell v. Morgenthau, 69 App. D.C. 15, 98 F. 2d 
296, cert. den. 305 U.S. 596, mot. den. 306 U.S. 616; and 
United States ex rel. Arant v. Lane, 47 App. D.C. 336, affd. 
249 U.S. 367, cited supra. 9 

The only question presented is whether the defense was 
properly raised. As indicated above, the Federal Rules of 
Civil Procedure have not been interpreted so as to restrict 
the i>leading of the affirmative defenses set forth in Rule 
8(c) only by way of an answer. The Courts have held that 
the Rules permit the raising of these affirmative defenses 
by the various motions provided for by the Rules (see the 
quotation from 2 Moore’s Federal Practice, pp. 1698-9, 
supra, and the cases cited at pp. 14-16). Hence, it is not 
surprising to find that there are many cases in -which the 
laches defense has been disposed of by a motion. 

For example, in Latta v. Western Inv. Co. (C.A. 9), 173 
F. 2d 99, cert. den. 337 U.S. 940, rehs. den. 338 U.S. 840, 863 
and 889, the appellees moved for a dismissal of the com¬ 
plaint on the ground that the causes of action were barred 
by the statute of limitations, laches and other grounds. The 
Court affirmed the judgment of dismissal; as to raising these 
defenses by motion the Court pertinently said: 

“The motion became what is known as a ‘speaking 
demurrer’ and it is immaterial whether it is designated 
as a motion to dismiss or for summary judgment. 
Courts have recognized this expeditious method of dis- 


9 See also Nicholas v. United States, 257 U.S. 71; Norris v. 
United States, id. 77; Farley v. Abbetmeier, 72 App. D.C. 260, 114 
F. 2d 569, 577; Hart v. United States, 91 Ct. Cls. 308, 311-2; John¬ 
son v. United States, 68 Ct. Cls. 222; Chamberlain v. United States, 
66 Ct. Cls. 317, cert. den. 279 U.S. 845; Blanch v. Cordero (C.A. 1), 
180 F. 2d 856, 858-9, cert. den. 340 U.S. 819; Kohlman v. Smith 
(W.D. Pa.), 71 F. Supp. 73; and see also cases cited in Caswell v. 
Morgenthau at 98 F. 2d 298. 




21 


posing of litigation since the adoption of the Federal 
Rules of Civil Procedure, 28 U.S.C.A.” (p. 102) 

Similarly, in Butcher v. United Electric Coal Co. (C.A. 7), 
174 F. 2d 1003, the Court had before it the issue whether a 
motion to dismiss for failure to state a claim on which relief 
could be granted, based on (a) statute of limitations, (b) 
laches, (c) statute of frauds, and (d) release, was proper. 
The Court “ conclude [d] that appellant’s contention that 
the affirmative issues raised by appellee’s motion to dismiss 
could under no circumstances be properly so raised is not 
sound.” (p. 1006). 

In Stoddard v. Morrin, 8 F.R.D. 375, the District Court for 
the District of Columbia said: 

“I do think that if a complaint shows on its face that 
the cause of action is barred by laches or the statute of 
limitations a motion to dismiss will lie.” (p. 376). 

So too in Dixon v. American Telegraph Co. (C.A. 2), 159 
F. 2d 863, cert. den. 332 U.S. 764, rehs. den. 332 U.S. 839, 856, 
333 U.S. 850, laches was permitted on a motion for summary 
judgment under Rule 56. See also Carroll v. Pittsburgh 
Steel Co. (W.D. Pa.), 100 F. Supp. 749; United States v. 
Kusche (S.D. Calif., C.D.), 56 F. Supp. 201; Hart for d- 
Empire Co. v. Glenshxm Glass Co. (W.D. Pa), 47 F. Supp. 
711, 714; Gifford v. Travelers Protective Assn. (C.A. 9), 153 
F. 2d 209; United States etc. v. Fleisher Eng. & Const. Co. 
(W.D.N.Y.), 45 F. Supp. 781; Overfield v. Pennroad Corp. 
(E.D. Pa.), 39 F. Supp. 482; and Barnhart v. Western Mary¬ 
land, Ry. Co. (D. Md.), 41 F. Supp .898. 

Under the equity practice prevailing in the United States 
District Courts prior to the adoption of the Federal Rules of 
Civil Procedure in 1938 laches was not required to be 
pleaded in order to be availed of by the defendant. This 
practice is adverted to with approval by the Supreme Court 
in Hays v. Port of Seattle , 251 U. S. 233, in the following 
words: 

“The only answer made to this is that the defense of 
laches was not pleaded. But in the equity practice of 




22 


the courts of the United States * • • laches is a 
defense that need not be set up by plea or answer. It 
rests upon the long-established doctrine of courts of 
equity that their extraordinary relief will not be ac¬ 
corded to one who delays the assertion of his claim for 
an unreasonable length of time, especially where the 
delay has led to a change of conditions that would 
render it unjust to disturb them at his instance.” (pp. 
238-9). 

If then the Federal Rules of Civil Procedure are deemed to 
have carried over the old equity practice, there seems to be 
no question that laches could be raised by motion of the 
appellees. 

The holding of this Court in Riley v. Titus, 89 App. D.C. 
79, 190 F. 2d 653, cert. den. 342 U.S. 825, reh. den. 342 U.S. 
889, on the point is not to the contrary. In that case the 
defendants moved to dismiss on the grounds that there was 
failure to state a claim upon which relief could be granted, 
and the District Court granted a motion for summary judg¬ 
ment (see Rules 12(b) and 56). Since it was first “urge[d] 
on appeal that the claims of appellant are barred by laches”, 
this Court observed that the motion to dismiss “did not 
raise the question of laches” under the Federal Rules. It 
seems that this Court would have deemed that the Rule had 
been complied with if “the affidavits filed in the District 
Court affirmatively raise[d] that issue”. 

True, as in Riley v. Titles, the appellees here made a 
motion to dismiss asserting (a) the Court was without juris¬ 
diction, (b) the complaint filed to state a claim upon which 
relief could be granted, and (c) res judicata as to the first 
two complaints. Following a hearing on the respective 
motions of appellant (for summary judgment) and appellees 
(to dismiss), the appellees on October 1, 1952, filed a Sup¬ 
plemental Memorandum of Points and Authorities in Sup¬ 
port of Motion to Dismiss which raised the defense of laches 
as to the “First Complaint”. Appellant was served with a 
copy of the supplemental memorandum to which he filed his 
objections (see docket entries, October 2 and 14, 1952, Ap¬ 
pellant’s App. p. 55). That the appellant was guilty of 
laches is so clear the Court below could have raised this 



23 


defense on its own motion (see Annotation, Pleading Laches, 
173 A.L.R. 326, at pages 337-9). It would appear, at least 
from the third paragraph of Appellant’s Objections to 
Rulings (Appellant’s App. page 45), that Judge Matthews 
suggested this possibility at the hearing. 

In any event, the matter was properly decided below. 
That the affirmative defenses set forth in Rule 8(c) may be 
raised by motion is consonant with the purpose of the Fed¬ 
eral Rules of Civil Procedure, to wit, to liberalize pleading 
in the federal courts so there would be an expeditious dis¬ 
position of every case. As indicated above, the authorities 
and the cases so hold. The criteria are that the opposing 
party be apprised of the defense and given an opportunity 
to refute it. Appellant cannot deny that he was both ap¬ 
prised of the defense and given an opportunity to state his 
opposition. 

Should this court be of the view that our position is in¬ 
correct, there would be a remand to the District Court for 
further proceedings. Of course, the appellees would assert 
these same defenses in the manner determined appropriate 
by this Court, and the result would be the same. Therefore, 
this Court should let the judgment below stand (cf. Hormel 
v. Helvering, 312 U.S. 552, 557-8). 

CONCLUSION 

For the foregoing reasons, it is respectfully submitted 
that the order and judgment of the District Court granting 
appellees’ motion to dismiss and denying appellant’s mo¬ 
tion for summary judgment should be affirmed. 

Warren E. Burgee 
Assistant Attorney General 
Leo A. Rover 

United States Attorney 
William R. Glendon 
Assistant United States Attorney 

Of Counsel: 

Edward H. Hickey 
Joseph Langbart 

Attorneys, Department of Justice 



24 


APPENDIX 

(Filed July 3, 1952) 

UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OF COLUMBIA 

Civil Action No. 1887-52 

Harold R. Love 
Plaintiff 


v. 

Frank C. Pace, Jr. et al. 
Defendants 


Motion for Extension of Time to Answer 
Complaint and Answer Motion for Summary 

Judgment 

Come now the defendants and by their attorney, the 
United States Attorney, move this Honorable Court to 
extend the time to answer the complaint filed herein to and 
including August 15, 1952, and to extend the time to answer 
the motion for summary judgment to and including August 
15, 1952. The answer to the complaint is due on July 3, 
1952, and the answer to the motion for summary judgment 
is due on July 9, 1952. 

/s/ Charles M. Irelan 
United States Attorney 
Ross O’Donoghue 
Assistant United States Attorney 


25 


(Filed July 31, 1952) 

UNITED STATES DISTRICT COURT FOR THE 
DISTRICT OF COLUMBIA 

Civil Action No. 1887-52 

Harold R. Love 
Plaintiff 


v. 

Frank C. Pace, Jr. et al. 
Defendants 


Motion to Dismiss 

Come now the defendants and by their attorney, the 
United States Attorney, move this Court to dismiss the 
above-entitled complaint for the reasons that (1) the Court 
is without jurisdiction of the subject matter; (2) the com¬ 
plaint fails to state a claim upon which relief may be 
granted; and (3) at least two portions of the complaint are 
res judicata. 

/s/ Charles M. Irelan 
United States Attorney 
Ross 0 ’Donoghue 
Assistant United States Attorney 


ft 0. S. OOVtRMMIKT PRINTING OFFICE. 19ft 


2S29SC 


IIM 



t 


REPLY BRIEF 


In thx 

i 

Mniteb &tatti Coart of Sppeate 

' !' 

i 

Fob the District of Columbia Cmcurr 

Jnited States Court of Appeals 

- For the 

District of Columbia Circuit 

Na 11680 M > JUN 41953 

HAROLD B. 

CLERK 

Appellant, 

i 

VB. 

ROBERT T. STEVENS, jot al. 

Appelleet. 


Appeal From the United States District Court 
Fob the District of Columbia. 


For Appellant: 

Harold R. Love, Pro Be, 
3912 39th Are. South, 
Minneapolis 6, Minn. 








INDEX 


Page 

Appellees’ Questions. 1 

Summary of Argument. 2 

I. Proper Parties Were Before the Court. 3 

II (a) The Defense of Laches Was Not Present. 6 

II (b) The Defense of Res Judicata Was Not Present. 7 

Conclusion . 9 

CITATIONS 

Statutes: 

Act of June 28. 1950, c. 383 Title IV, Sec. 401 (t). 64 Stat. 271. . 9 

* Section 171(a), Title V, U. S. C. A. 9 

Act of Sept. 18, 1950, c. 951, 64 Stat. . 9 

Section 183, Title V, U. S. C. A. (The Act of June 28, 1950, re¬ 
pealed this section). 9 

Section 863, Title V, U. S. C. A.. 3,4,8 

Section 868, Title V, U. S. C. A.4, 8 

Section 576, Title X, Army, U. S. C. A. 8 

Section 15, Title X, Army, U. S. C. A. 8 

Federal Rules of Civil Practice: 

No. 8 (c) 7 

No. 12 (a) 3 

No. 12 (h) 4 

Nos. 38, 39 and 57. 7 

Miscellaneous: 

Executive Order 9830 . 5 

Reorganization Plan No. 5, Eff. Aug. 19, 1949, 14 F. R. 5228, 

63 Stat. 1067 (Sec. 632, Title V, U. S. C. A.). 5 

District Court, District of Columbia, Rule No. 9 (b). 3 


























In the 


®mteb States! Coart of Appeals 

Fob the District of Columbia Circuit 


No. 11680 


HAROLD R. LOVE, 

Appellant, 

vs. 

ROBERT T. STEVENS, et al, 

Appellees. 


Appeal From the United States District Court 
For the District of Columbia. 


REPLY BRIEF 


1. Appellees present two questions: 

(1) Whether a veteran who passed a civil service exami¬ 
nation, upon which he was given a certificate of eligibility, 
can have a court review cancellation of eligibility when no 
reason is given. 

(2) Whether laches and res judicata can be pleaded by 
motion. 








0 


SUMMARY OF ARGUMENT 

Appellant shows appellees were in default of timely plead¬ 
ing. That jurisdiction appears over the subject matter and 
there is stated a claim for relief. That appellees have aban¬ 
doned any question of jurisdiction and that a claim for relief 
is stated. 

That the defense of laches was never pleaded. That the 
defenses of laches and res judicata were not present or avail¬ 
able. 

That there has never been any determination of the ques¬ 
tion by any court that active duty army officers have any 
civil authority to suspend or discharge appellant from the 
civil service employment. 

That the civil authorities charged with the duty of en¬ 
forcement of the laws and regulations restored appellant as 
of July 13, 1947, retroactively by mandate in 1949. then re¬ 
fused to enforce their recommendations. 

That. Army officers abused power without authority and 
maliciously prevented such restoration, upon which facts 
appellees present no contest. 

ARGUMENT 

2. The Motion to Dismiss, served and filed after default, 
claimed three grounds: 

(1) Xo jurisdiction over the subject matter. 

(2) Complaints fail to state a claim for relief. 

(3) The first two portions of the complaint are res ju¬ 
dicata. 

3. Grounds 1-2 appear abandoned and are not argued. 

4. The third ground the lower court disposed of as far 
as the first portion of the complaint, by ruling “plaintiff’s 
action with respect to the alleged illegal suspension in 1944 
is not res judicata CAPP. 42. f. 37). 


5. No cure is presented for default in failure to plead 
laches, nor to serve answer at all or motion in time. Touched 
on is their motion to extend time (Appellee’s Brief 24). It 
was never set for hearing nor time extended. Default and 
waiver of all defenses or objections remain. No argument 
can remove the default and waiver. Neither Court can effect 
a cure in view of Rule 12(a), F. R. C. P. f that after their 60 
days expired (APP. 54) cause or excusable neglect must be 
shown. Neither is claimed. Plaintiff served and filed his 
Motion for Summary Judgment, points and authorities there¬ 
on June 25, 1952 (APP. 54). Defendants never opposed it 
(APP. 54-56). It is true as appellees state in notes, page 14 
their brief. Rule 9(In of the court below states it “may” 
treat plaintiff’s motion as conceded. But words of compul¬ 
sion in it require points and authorities opposing such mo¬ 
tion. It. would seem abuse of discretion to refuse to concede 
where no reason is given and plaintiff’s motion is merely 
“denied” (APP. 49). 

I. 

Proper Parties Were Before the Court. 

6. This is directed to the Third portion of the Complaint 
as to whether a Court can review lack of reason for suspen¬ 
sion of eligibility established. Shown is no reason for arbi¬ 
trary destruction of established rights, debarring for future 
appointment certification. Without reason there is no re¬ 
view possible. No title to office is being tried. He seeks no 
appointment rights as such to office or job. He asserts mere¬ 
ly that he is entitled to the procedural requirements of the 
Veterans’ Preference Act (S. 863 T. V). No selection or re¬ 
tention is involved. What appellant seeks is not a claim for 
judicial review of an adverse ruling of the Civil Service Com¬ 
mission for there has been none by them, nor does he seek 
to review personnel operations or policies of the Government. 





4 


He does not seek to determine his eligibility for certifica¬ 
tion or appointment. What he does seek is that appellee, the 
Secretary of the Treasury, chargeable in the first instance, 
as the highest administrative officer of the agency, be com¬ 
pelled to do his duty of meeting the procedural requirements 
of Section S63, Title V, F. X. C. .4. He seeks, further, that 
the chairman of the Civil Service Commission, chargeable in 
the second instance, with the duty of enforcing the law and 
regulations, by Section S6S, Title V, F. tf. (\ A., be com¬ 
pelled to perform his duty of enforcing the law and regula¬ 
tions that the Secretary of the Treasury in the first instance 
give appellant the required notice with reasons for debarring 
appellant for future appointment certification to employ¬ 
ment, acts requiring no discretion. 

7. Presented to the court below, there was no defense by 
way of answer or motion to the third portion of the com¬ 
plaint. The spurious and specious contention is now raised 
for the first time, that appellant should name the individ¬ 
uals composing the Civil Service Commission, as defend¬ 
ants. If there were merit to the contention, it was waived 
when not pleaded, because of Rule 12(h), F. R. C. P. The 
Secretary of the Treasury is a proper person sued. That is 
not disputed. That person is designated in the statute as 
“the administrative officer.” not the Commission, to give the 
advance notice with specific reasons, which must be “for 
such cause as will promote the efficiency of the service’’ in 
writing to “debar” for future appointment. The Veterans’ 
Preference Act is clear (BRIEK-SEP. APPEX., page “d”). 
The citation from this Court’s decisions in Appellant’s Brief, 
page 36. referring to “appointment only,’’ and “registra¬ 
tion,” determine the validity of appellant’s premise and 
Third Claim, which rests squarely on the failure to meet the 
procedural requirements necessary to debar from considera¬ 
tion for future eligibility or certification for appointment of 


5 


a war veteran, who has established his eligibility under the 
current preference statute cited. 

8. Appellees refer in their brief to Executive Order 9830 
of February 24, 1947, and the later 1949 Reorganization 
Plan No. 5, Eff. Aug. 19, 1949, 14 F. R. 5228, 63 Stat. 1067, 
under Section 632, Title V, V. S. C. A. This latter reads in 
part: 

“Section 2(a) In order to facilitate the most effec¬ 
tive and expeditious administration of civil service mat¬ 
ters and related affairs, there are hereby transferred to 
the Chairman, U. S. Civil Service Commission, 

***** 

“(6) the functions of the Commission with respect 
to executing , administering and enforcing (A) the civil 
service rules and regulations of the President of the 
United States and of the Commission and the laws gov¬ 
erning the same * * *” 

An appeal is not involved: the lack of it is. It is thus 
clear that the chairman sued for the purpose indicated, i.e., 
that he be compelled to enforce the law governing, when the 
Secretary of the Treasury failed to comply with it, in this 
matter, is the proper sob* person, not the whole Commission 
as individuals. Enforcement as a function is exclusively re¬ 
served to the chairman. That is what appellant sought in 
the court below < APP. 13, ff. 13, 14-15). Xo doubt had each 
commissioner been sued, the contention would change to 
claim the chairman must be sued alone. 







6 


II. 

(a) The Defense of Laches Was Not Present. 

9. The defense of laches, which appellees claim can be 
pleaded by motion, was not raised by motion on their part, 
nor by motion on the Court’s part, nor by affidavit State¬ 
ments that it was, are errors on the part of the Court and 
the appellees (APP. 41). Appellant's affidavit shows laches 
was not present. That is why no attempt was made to plead 
it on the part of appellees, nor finding of fact made thereon 
by the Court. The record shows diligence was always present 
in asserting rights on the purported “indefinite suspension” 
from December 27, 1944, to April 2, 1945, when restored. 
The claim was allowed in 1948 (APP. 37, f. 34; 38-43-44). 
For eight years he pressed his claim diligently, even while 
it was pending in the court below (APP. 40-41) on June 17, 
1952, after it was filed April 29, 1952 (APP. 1), always 
raising the claim an Army Officer had no authority to “in¬ 
definitely suspend” him from his civil service employment 
(APP. 35. f. 32. and page 36). The court below drew the 
conclusions that this FIRST claim was subject to laches 
and that “plaintiff has done nothing to effectively assert his 
rights for eight years (APP. 42. 3rd par. from bottom). No 
foundation appears for those conclusions. Plaintiffs asser¬ 
tions were so effectirely asserted that his claim for pay, for 
the period, was allowed in June, 1948 (APP. 37, f. 34, and 
page 38). after it was redrafted for him in September or 
October, 1947 (APP. 37. 3rd par. from top of page). Specifi¬ 
cally. the Court further held that “plaintiff denies that he 
is guilty of laches” I APP. 42. 2nd par. from top of page). 
A contrary showing is made. Urgently, continuously, ap¬ 
pellant asserted the point that Army officers were usurp¬ 
ers of jurisdiction, with no authority, whose actions were 
void (APP. 33-41). Lack of diligence appears only on the 
part of appellees for eight years in failing to pay the claim 



passed on and allowed. No detriment is shown or claimed. 

10. The summary disposal of the action as to the FIRST 
claim, by the court below, deprived of jury trial of the facts 
disputed, related to laches. Jury trial to determine disputed 
facts, put in issue, is provided by Rules 38-39 and 57, F. R. 
C. P. Thus is shown the most definite reason and ground 
for this Court, to sustain the application of Rule 8(c), F. R. 
C. P., requiring laches and res judicata to be specifically 
pleaded by way of answer only, and if not, that the failure 
constitutes a waiver thereof, under Rule 12(h), F. R. C. P. 
(SEP. APP. “j”) which states: 

“A party waives all defenses and objections which he 
does not present by motion as hereinbefore provided.” 

Motion or answer within 6ft days of sendee of summons is 
required, to escape waiver and default. Both appear here. 

(b) The Defense of Res Judicata Was Not Present. 

11. The court below specifically held that the FIRST 
claim “in 1944 is not. res judicata” with respect to the alleged 
illegal suspension, on the lack of authority in the military 
officers, but erroneously ruled the SECOND claim was sub¬ 
ject to res judicata, incorrectly assuming that the question 
had been passed on by the Court of Claims. Nothing shows 
the Court of Claims ever passed on the point. The point has 
never been determined. Inconsistency appears. The ruling 
that the FIRST claim is not subject to res judicata is cor¬ 
rect, and must be applied to the SE(X>ND claim. The first 
claim was not held subject to res judicata, for obviously the 
claim was never passed on adversely, but, on the contrary, 
was allowed. Appellees neglected to pay the claim for the 
period during the wrongful suspension when April 2, 1945, 
appellant was restored at two higher grades in pay (APP. 3, 
top of page) to employment. 




8 


12. No claim is made that any court, person or body 
passed on the point presented continuously from December 
28, 1944, to this time (APP. 2-3; 6-8; 33-41; 43-44) ; that an 
active duty Army officer can. or cannot, function as a civil 
administrative or executive official. He is prohibited by law 
from so acting. to suspend or discharge a war veteran civil 
service executive employe, and their actions here were void. 

13. Undisputed, the record shows the alleged charges 
were presented and used by the military only, were, as to 
the first, intentionally false, and as to the second, a mere 
allegation that the employe performed his required duty 
(Appellant’s Brief 26-34). Such charges were not within the 
requirements of Section 863. Title V, U. *8. C. .4., that must 
show “such cause as will promote the efficiency of the serv¬ 
ice. w 

14. Uncontested are the facts, Cl) that the Civil Service 
Commission found the suspension in 1947, and discharge 
void, and ordered that enforcement under the provisions of 
Section 863, Title V, V. *8. C. .!.. was mandatory', because 
there the word “mandatory” was used. The finding was re¬ 
peated under date of May 26. 1949, making decision that, 
retrospectively and retroactively, appellant must be restored, 
as of July 13, 1947. But. thereafter appellees refused to 
enforce their own mandates, pursuant to Section 868, Title 
V, U. 8. C. .4., requiring it (APP. 20. pars. 11-12, and SEP. 
APP. in brief pages “c-f”). 

15. The facts showing abuse of power by the Armed 
Forces, with malicious, arbitrary and wrongful intent to 
harm appellant, appear (APP. 17-25). No contest nor argu¬ 
ment against these premises appellant asserts are presented 
by appellees. 

16. The prohibitory statute. Section 576, Title X, Army y 
r. 8. C. A., and Section 15 of the same title (APP. SEP., 





9 


page “c”). are so finite in intent to stringently divorce the 
military from the executive function, the latter section em¬ 
phasizing it by requiring the whole Army to refrain from 
executing the laws or being employed for that purpose; that 
when desired to appoint George C. Marshal as Secretary of 
Defense under the newly created Section 171(a), Title V, 
r. &. C. A., which provided appointment must be “from civil¬ 
ian life by the President,” a special Act of September IS, 
1950, c. 951, 64 Stat. . was necessary, naming him, and 
exempting him from the application of Section 576 (supra), 
and Section 183. Title V, V. *8. (7. .4., was repealed by the Act 
of June 28, 1950, c. 383, Title IV, Sec. 401 (t). 64 Stat. 271, 
said Section 183 having previously given authority for 
a temporary period to place a high ranking officer in to sub¬ 
stitute as Secretary of War, in his absence. 

17. Appellees’ Brief and argument contains, throughout, 
tortured, strained and fallacious inapplicable interpreta¬ 
tions of citations on facts not analogous nor germane to the 
questions presented, particularly as to their first question 
predicated on the incorrect assumption of a fact not present, 
i.e„ that they pleaded laches by motion, which motion (end 
their brief) shows on its face they did not. They have no 
affidavit sustaining it. 


CONCLUSION 

For the foregoing reasons it is respectfully submitted to 
this Honorable Court, if it please, that the order and judg¬ 
ment of the court below should be reversed, and that appel¬ 
lant’s Motion for Summary Judgment should have been 
granted below: and that determinations be made by this 
Court of all points and questions presented. 

Habold R. Love, 
Appellant Pro Se. 







ftniteb fttate* Court of. appeals , , 

Juried States Court of A r*W$ 

Fob the District of Columbia CracunFor the 

District of Columbia C: • • • •»r ; 

No. 11680 i'B-ED AUG 5 1S53 


HAROLD E. LOVE, <5 ^f 


Appe> 


vs. 


ROBERT T. STEVENS, Secretary, et al, 

Appellee*. 


PETITION FOR REHEARING 


Petitioner, appellant above, petitions for a rehearing on 
the Per Curium decision of the Court, dated July 30, 1953, 
on the grounds: 

The Court should determine and rule that: 

1. An Army Officer has no jurisdiction to dismiss or sus¬ 
pend a civil service employe, is prohibited from so doing by 
Sections 15 and 576 of Title X, Army, U. S. C. A., and no 
Court has ruled or made any determination on or interpret¬ 
ed or applied such statutes, but has ignored them and rule 
on 

2. The other contentions, questions and points of error 
presented to it, which it has ignored. 

Dated August 3, 1953, Minneapolis, Minnesota. 

Respectfully, 

Harold R. Love, Pro Se, 

3912 39th Avenue South, 
Minneapolis 6, Minnesota. 




CERTIFICATE 


I, Hjirold R. Love, the appellant above named and peti¬ 
tioner, certify that the hereto attached Petition for Rehear¬ 
ing is presented in good faith and not for delay and am pre¬ 
vented from obtaining the services of any counsel by the 
provisions of Section 551 of Title 38, U. 8. C. A. 

Harold R. Love, 

3912 39th Avenue South, 
Minneapolis 6, Minnesota.